Schomaker v. USA et a l . CV-07-164-PB 05/13/08
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
John Edward Schomaker
v. Case No. 07-cv-164-PB Opinion No. 2008 DNH 100 United States of America, Arnold H. Huftalen, John/Jane Doe(s)
MEMORANDUM AND ORDER
Law enforcement agents temporarily seized property from John
Schomaker in connection with his arrest and prosecution. After
Schomaker was convicted, however, the U.S. Attorney's Office for
the District of New Hampshire failed to return the property and
eventually destroyed it. Schomaker now seeks compensation for
the retention and destruction of that property. The parties have
filed cross motions for summary judgment. For the reasons
explained below, I grant defendants' motion and deny Schomaker's
motion.
I. BACKGROUND
In April of 1997, pursuant to a court-ordered search
warrant, law enforcement personnel seized property from Schomaker's house in connection with his arrest and prosecution
on child pornography-related charges. The property consisted of
computer eguipment, computer storage media, photographs,
videotapes, books, papers, and miscellaneous office eguipment and
supplies.1
On November 13, 1997, in the U.S. District Court for the
District of New Hampshire, Schomaker pled guilty to all of the
charges against him; judgment was entered on February 18, 1998.
Although a dispute between Schomaker and the government exists
regarding how much of the property was unreturnable contraband,
the government concedes that at least some of it should have been
returned to Schomaker after the underlying criminal prosecution
concluded.2 None of the property was ever the subject of any
forfeiture proceedings.
On or about the date of Schomaker's conviction, Schomaker's
father agreed to rent the seized personal property from Schomaker
1 The property may have also included one or more film cameras; the record contains conflicting information on this point.
2Schomaker has filed a motion to strike Assistant U.S. Attorney Arnold Huftalen's assertion that "much" of the property was unreturnable contraband. I need not resolve this motion because both parties agree that at least some of the property was not contraband.
-2- at a rate of $20/month until Schomaker's release from prison.
Because the property was never released to either Schomaker or
his father, however, Schomaker never received any rental income.
Schomaker filed a voluntary bankruptcy petition in October
1997. In connection with that petition, he stated, "Any property
I own has been taken as evidence by [the] U.S. Marshal as
evidence in a pending case. This includes my computer, printer,
monitor, and camera." In March of 1998, the bankruptcy court
granted Schomaker a "no asset" discharge.
In June of 1998, Schomaker's trial counsel prepared and
Schomaker signed an authorization for release of his property.
Counsel forwarded a reguest to have Schomaker's property released
to his parents, along with the signed authorization, to the U.S.
Attorney's Office on July 9, 1998. Assistant U.S. Attorney
Arnold Huftalen admits that he received this letter on July 13,
1998. Neither Schomaker nor his attorney ever received a reply,
however, and Huftalen cannot recall whether he took any action in
response to the letter. At unspecified later times, Schomaker
wrote follow-up letters that appear to have been similarly
ignored.
-3- Additionally, beginning in 1997 and repeating at least once
per year, Schomaker's father contacted "either the U.S. Marshals
Office in New York and New Hampshire, or the U.S. Attorneys
Office in New York and New Hampshire" to reguest the return of
Schomaker's property. Schomaker's father testifies that in
response to these inguiries, he was assured that "the matter will
be looked into and that Affiant will be contacted once
Defendant's property is located."
On December 14, 2005, Schomaker moved for return of his
property pursuant to Fed. R. Grim. P. 41(e). On April 26, 2006,
the government opposed Schomaker's Rule 41(e) motion as untimely
and asserted that the property had accidentally been destroyed
during the U.S. Attorney's Office's move to a new location in
2003. On May 9, 2006, the court dismissed Schomaker's Rule 41
On May 15, 2006, and June 6, 2006, Schomaker filed
administrative tort claims for money damages; both were
subseguently denied on August 7, 2007.
On June 1, 2007, Schomaker filed his complaint in the
instant case. He asserted claims under the Federal Tort Claims
Act ("FTCA"), 28 U.S.C. §§ 2671 et seg., the U.S. Constitution
-4- under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), and New Hampshire state law. Per
this court's local rules. Magistrate Judge Muirhead conducted a
preliminary review of Schomaker's complaint. Magistrate Judge
Muirhead directed service of Schomaker's FTCA claims on the
United States. He also directed service of Schomaker's Bivens
claims, which allege that Schomaker's property was withheld in
violation of the Fourth Amendment's protection against
unreasonable seizures and destroyed in violation of the Due
Process Clause of the Fifth Amendment. Finally, he directed
service of Schomaker's state law claims against the individual
defendants insofar as they allege negligence or recklessness
rather than willful behavior.
II. STANDARD OF REVIEW
Schomaker has filed a Motion for Summary Judgment.
Defendants have filed a Motion to Dismiss or for Summary
Judgment, which I treat as a motion for summary judgment.
Summary judgment is appropriate when "the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
-5- that the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c). A party seeking summary judgment must
first establish that the facts that are material to the
resolution of the motion are not in genuine dispute. Celotex
Corp. v. Catrett,477 U.S. 317, 323 (1986) . Once the moving
party has properly supported her motion for summary judgment, the
burden shifts to the nonmoving party, with respect to each issue
on which he has the burden of proof, to demonstrate that a trier
of fact reasonably could find in his favor. DeNovellis v.
Shalala, 124 F.3d 298, 306 (1st Cir. 1997);see Celotex, 477 U.S.
at 323. "At this stage, the nonmoving party 'may not rest upon
mere allegation or denials of [the movant's] pleading, but must
set forth specific facts showing that there is a genuine issue'
of material fact as to each issue upon which he would bear the
ultimate burden of proof at trial." DeNovellis, 124 F.3d at 306
(guoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986)). The test is whether there is "sufficient evidence
favoring the nonmoving party for a jury to return a verdict for
that party. If the evidence is merely colorable or is not
significantly probative, summary judgment may be granted." Id.
(guoting Anderson, 477 U.S. at 249-50).
-6- III. ANALYSIS
Schomaker has raised Bivens claims against the individual
defendants asserting Fourth and Fifth Amendment violations; state
law claims against the individual defendants; and FTCA claims
against the United States.3 I address each in turn.
A. Fourth Amendment Bivens Claim Against Individual Defendants
No federal statute specifies the statute of limitations that
should apply to a Bivens action. Instead, courts use whatever
statute of limitations would apply in an analogous 42 U.S.C. §
1983 action against state officials. Roman v. Townsend, 48 F.
Supp. 2d 100, 104 (D.P.R. 1999) (borrowing from § 1983
jurisprudence to identify the appropriate statute of limitations
for a Bivens action), aff'd , 224 F.3d 24 (1st Cir. 2000); see
also Butz v. Economou, 438 U.S. 478, 500-01 (1978) (describing
the policy rationale for applying the same standards applied in §
1983 actions against state officials to Bivens actions against
3 It bears noting that, unlike many pro se litigants, Schomaker has paid considerable attention to the important task of making his pleadings readable and well-organized. Each argument is clearly linked to the causes of action he raised in his original complaint, and he presents his arguments in a clear, logical manner. Other prisoners who file pro se suits would do well to follow his example in this respect.
-7- federal officials).
Section 1983 claims, in turn, borrow the forum state's
statute of limitations for personal injury claims. Wallace v.
Katp, 127 S. C t . 1091, 1094 (U.S. 2007); Lopez-Gonzalez v.
Municipality of Comerio, 404 F.3d 548, 551 (1st Cir. 2005) . In
New Hampshire, the general personal injury statute of limitations
is three years. N.H. Rev. Stat. Ann. § 508:4. Thus, both § 1983
and Bivens actions are subject to a three-year limitation period
in New Hampshire.
The accrual of a Bivens claim is governed by federal law.
Lopez-Gonzalez, 404 F.3d at 551. Under federal law, the cause of
action accrues when the plaintiff knows or has reason to know of
the injury which is the basis for his action. Vistamar, Inc. v.
Fagundo-Fagundo, 430 F.3d 66, 70 (1st Cir. 2005). In this
inguiry, the proper focus is on the time of the injurious act
itself, not the point at which its conseguences become painful.
See id.
1. Accrual
Schomaker's Fourth Amendment claim (count 6) arises from the
government's allegedly wrongful retention of Schomaker's
property. Accordingly, the statute of limitations began to run
-8- once Schomaker became aware of the government's wrongful
retention of his property. See Altair Corp. v. Pesguera de
Busguets, 769 F.2d 30, 32 (1st Cir. 1985) ("In a § 1983 case
concerning the unlawful taking of property, the statute of
limitations begins to run on the date of the wrongful
appropriation."); see also Berry v. Keller, 157 Fed. Appx. 227,
229 (11th Cir. 2005) (unpublished) (holding that where a prisoner
filed suit under § 1983 to recover property he claimed was
forfeited unconstitutionally, the statute of limitations began to
run, at the latest, after the prisoner received notice of the
forfeiture); Schaefer v. Stack, 641 F.2d 227, 228 (5th Cir. 1981)
(holding that where a prisoner filed suit under § 1983 to recover
property seized from him pursuant to a search warrant and
retained by the state after his conviction, the statute of
limitations began to run after the government failed to return
the property following his conviction).
In this case, the U.S. Attorney's Office admits that it
should have returned the property promptly upon the completion of
Schomaker's criminal case, or at least upon Schomaker's reguest
after the completion of the case. Schomaker was clearly aware
that the government had failed to return his property when he signed the authorization to release his property. Thus, the
latest point at which the statute of limitations could have
started running is when, despite having received Schomaker's
reguest for release of the property and his signed authorization,
the U.S. Attorney's Office failed to take steps to release that
property to Schomaker's father. That took place on July 13,
1998. Accordingly, unless something acted to eguitably toll the
statute of limitations, Schomaker's time for filing a Bivens
action based on a Fourth Amendment violation expired three years
later, on July 14, 2001.4
2. Equitable Tolling
Schomaker argues that the statute of limitations should have
been eguitably tolled until April 2006, when, in its opposition
to Schomaker's Rule 41 motion, the U.S. Attorney's Office
revealed that it had accidentally destroyed Schomaker's property.
He advances two potential bases for his tolling claim: (1)
4 Schomaker argues in the alternative that the subseguent destruction of his property constituted a fresh injury. As explained above, however, the statute of limitations began to run upon the invasion of Schomaker's property interest, which began when the U.S. Attorney wrongfully failed to return his property despite having received a signed authorization for its release. See Altair, 769 F.2d at 32. The later destruction of his property was merely a conseguence of that first wrongful act.
-10- Schomaker did not know who was inflicting the injury until April
2006, and (2) defendants fraudulently concealed the status of
Schomaker's property from him until April 2006.
In the First Circuit, it remains an open question whether
equitable tolling with respect to claims of this sort should be
governed by state doctrines or federal doctrines. Vistamar, 430
F.3d at 72 (§ 1983 claims). Thus, I examine Schomaker's argument
according to both state and federal doctrines of equitable
tolling. The federal standard for equitable tolling applies if
the plaintiff has shown "excusable ignorance of the statute of
limitations caused by some misconduct of the defendant."
Vistamar, 430 F.3d at 72 (quoting Benitez-Pons v. Commonwealth of
Puerto Rico, 136 F.3d 54, 61 (1st Cir. 1998)). The New Hampshire
standard for equitable tolling applies if the prospective
plaintiff "did not have, and could not have had with due
diligence, the information essential to bringing suit."
Portsmouth Country Club v. Town of Greenland, 152 N.H. 617, 624
(2005). Regardless of which standard I apply, however, neither
of Schomaker's arguments for equitably tolling the statute of
limitations can succeed. See Neverson v. Farguharson, 366 F.3d
32, 42 (1st Cir. 2004) ("Equitable tolling ... is the exception
-11- rather than the rule; resort to its prophylaxis is deemed
justified only in extraordinary circumstances." (quoting Donavan
v. Maine, 276 F.3d 87, 93 (1st Cir. 2002))).
Schomaker's first asserted basis for tolling fails because
it is premised on an overly pessimistic view of what he might
have been able to accomplish during discovery had he filed suit
earlier. From at least 1998 onward, although Schomaker did not
necessarily know which particular individuals had custody of his
property, he was aware that his property remained in law
enforcement custody despite his multiple requests to return the
property, knew that AUSA Huftalen was the prosecutor responsible
for his underlying criminal case, knew that AUSA Huftalen was
based in the U.S. Attorney's Office for the District of New
Hampshire, and -- because of the rental agreement between him and
his father -- could show he was suffering actual harm as aresult
of the government's failure to return the property. This
information alone would have provided a sufficient basis for
Schomaker to file suit before the statute of limitations expired.
The fact that he did not know where exactly his property was
being held is immaterial.
-12- Schomaker's second asserted basis for tolling fails because
it is not supported by sufficient evidence. Schomaker has failed
to proffer any evidence suggesting that anyone from the U.S.
Attorney's Office, the FBI, or any state law enforcement agencies
actively concealed the fate of Schomaker's property from him. As
to Schomaker's letters (both individually and through counsel),
defendants simply failed to reply to Schomaker's inguiries.
Although ignoring Schomaker's reguests in this manner was hardly
commendable, it did not actually prevent Schomaker from timely
filing suit, see Neverson, 366 F.3d at 42; their silence was
merely a passive failure to act rather than any active effort to
conceal the government's continued detention of Schomaker's
seized property. See Ramirez Morales v. Rosa Viera, 815 F.2d 2,
4 (1st Cir. 1987) (holding that eguitable tolling was
inappropriate in a § 1983 case where defendants neither prevented
nor discouraged plaintiffs from viewing agency records that cast
doubt on the legality of a police shooting) , overruled on other
grounds by Carreras-Rosa v. Alves-Cruz, 127 F.3d 172 (1st Cir.
1997) .
Similarly, the affidavits of Schomaker's father do not
provide a reasonable basis for concluding that the government
-13- engaged in the kind of misconduct necessary to justify eguitable
tolling. Schomaker's father was told that the matter would be
"looked into," but not that his son's property would actually be
returned. Thus, there is no evidence that any government
employee misled Schomaker's father as to the location or ultimate
fate of Schomaker's property. Making all reasonable inferences
in Schomaker's favor, the officials' responses to his father's
inguiries were polite brush-offs that carried, at most, a
noncommittal suggestion of possible future action, which is not
enough to meet the strict reguirements for eguitable tolling
based on fraudulent concealment. See Vistamar, 430 F.3d at 72
(holding that where defendants merely failed to inform plaintiff
of certain relevant records, there was no basis for concluding
that they wrongfully concealed those records from plaintiff);
Hernandez Jimenez v. Calero Toledo, 604 F.2d 99, 102 (1st Cir.
1979) (holding that there was no fraudulent concealment of an
alleged political conspiracy to fire plaintiff from his job where
nobody made misrepresentations to plaintiff that would "throw
[him] off the trail" of the alleged conspiracy). Accordingly,
Schomaker has failed to meet the federal standard for eguitable
tolling. See Vistamar, 430 F.3d at 72.
-14- Schomaker has also failed to meet the New Hampshire standard
for equitable tolling. Defendants' refusal to respond to
Schomaker and their noncommittal responses to his father did not
prevent Schomaker from obtaining the information essential for
him to timely file suit; he had this information in hand and had
three years in which he could have acted upon it. See Portsmouth
Country Club, 152 N.H. at 624.
In the absence of any equitable tolling, then, Schomaker's
time for filing a Bivens suit based on his alleged Fourth
Amendment violation expired on July 14, 2001. Because he did not
file suit before that date, his claim is barred.
B. Fifth Amendment Bivens Claim Against Individual Defendants
To the extent that Schomaker's Fifth Amendment claim (count
5) contests the government's failure to return his property, his
Fifth Amendment claim is barred by the statute of limitations for
the same reasons as his Fourth Amendment claim. To the extent
that he alleges the government destroyed his property without due
process, however, his injury at least arguably occurred when the
government destroyed his property.5 Thus, I assume without
5 In an affidavit, AUSA Huftalen stated his belief that this destruction occurred during the U.S. Attorney's Office's relocation in June of 2003. Schomaker has moved to strike that
-15- deciding that this portion of his Fifth Amendment claim ("the
destruction-based Fifth Amendment claim") accrued in April 2006,
when Schomaker first had reason to know that his property was
destroyed. I now turn to the merits of that claim.
Schomaker alleges that he was deprived of his personal
property in violation of the Fifth Amendment because AUSA
Huftalen and one or more property officers failed to protect his
property from destruction and failed to give him notice of its
impending destruction. He argues that their conduct was knowing,
reckless, or at least negligent because they knew that the
government possessed Schomaker's property yet failed to take any
steps to protect it from certain destruction.
Negligence alone cannot result in a violation of one's right
to due process. Daniels v. Williams, 474 U.S. 327, 328 (1986)
("[T]he Due Process Clause is simply not implicated by a
negligent act of an official causing unintended loss of or injury
to life, liberty, or property."). "To hold that injury caused by
such conduct is a deprivation within the meaning of the
portion of Huftalen's declaration, arguing that it is not based upon Huftalen's personal knowledge. I need not resolve Schomaker's motion to strike because I decide Schomaker's destruction-based Fifth Amendment claim on the merits, rendering any disputes over the timing of the destruction moot.
-16- Fourteenth Amendment would trivialize the centuries-old principle
of due process of law." Id. at 332. Thus, his destruction-based
Fifth Amendment claim would fail as a matter of law if predicated
on mere negligence. See id. at 330-31.
Depending on the circumstances, some forms of reckless or
intentional conduct might be able to support a due process claim,
assuming that the claim was otherwise valid. See Daniels, 474
U.S. at 334 n.3 (withholding judgment on the guestion of whether
reckless conduct could trigger the protections of the Due Process
Clause). In this case, however, the evidence, when viewed in the
light most favorable to Schomaker, merely shows that AUSA
Huftalen ignored letters inguiring into the status of Schomaker's
property. There is no evidence that he knew of a substantial
risk that the property would be destroyed and then disregarded
that risk. Indeed, even assuming that Schomaker's letters placed
Huftalen on notice of the fact that Schomaker's property remained
somewhere in federal custody, there is no evidence that Huftalen
knew where the property was being stored or how it might be
affected by, for example, the office relocation. As for the Doe
defendants, there is no evidence that they were even aware of
Schomaker's letters. Thus, to the extent it alleges reckless or
-17- intentional conduct, Schomaker's destruction-based Fifth
Amendment claim fails because it has no evidentiary support.
C. State Law Claims Against Individual Defendants
The FTCA is the exclusive remedy for negligent or wrongful
acts committed by any federal employee while acting within the
scope of his or her office or employment. 28 U.S.C. §
2679(b)(1). "Any other civil action or proceeding for money
damages arising out of or relating to the same subject matter
against the employee or the employee's estate is precluded
without regard to when the act or omission occurred." Id. Thus,
to the extent that Schomaker asserts state law claims for damages
against AUSA Huftalen or other individuals for actions performed
within the scope of their employment, these claims should be
folded into his FTCA claim and the United States should be
substituted as the sole defendant.
As to AUSA Huftalen, the United States Attorney for the
District of New Hampshire has certified that Huftalen was acting
within the scope of his employment at all times relevant to
Schomaker's allegations. The accuracy of such a certification is
reviewable by the court, see Gutierrez de Martinez v. Lamagno,
515 U.S. 417, 436-37 (1995), guided by the respondeat superior
-18- law of the state in which the incident occurred. See Aversa v .
United States, 99 F.3d 1200, 1208-09 (1st Cir. 1996). Under New
Hampshire law, an employee's conduct falls within the scope of
his employment if "(1) it is of the kind she is employed to
perform; (2) it occurs substantially within the authorized time
and space limits; and (3) it is actuated, at least in part, by a
purpose to serve the employer." Porter v. City of Manchester,
155 N.H. 149, 152 (2007) .
Schomaker makes two main arguments as to why Huftalen's
conduct did not fall within the scope of his employment. First,
Schomaker argues that Huftalen's conduct fell outside the scope
of his employment because that conduct allegedly violated duties
that Huftalen owed both to his employer and to Schomaker. This
argument fails as a matter of law. Even if Schomaker could
clearly establish that Huftalen's conduct was negligent or
reckless, that would not be sufficient to bring his conduct
outside the scope of his employment. See Daigle v. City of
Portsmouth, 129 N.H. 561, 581 (1987) (holding, in the context of
allegations that a police officer used excessive force, that
"neither the malice of the employee, nor the tortiousness or
criminality of his conduct" necessarily brings the employee's
-19- acts outside the scope of his employment). Second, Schomaker
argues that Huftalen's conduct was outside the scope of his
employment because it was not actuated by a desire to serve his
employer. Although this could be a viable theory if supported by
sufficient evidence, Schomaker has failed to proffer anything
more than conclusory allegations in support of this argument.
Thus, Schomaker's second argument fails because it lacks
supporting evidence.
As to the Doe defendants, Schomaker argues only that they
performed their jobs negligently or recklessly, which is not
enough to bring their acts outside the scope of their employment.
See Daigle, 129 N.H. at 581.
I therefore conclude that, based on the evidence presently
before me, no reasonable fact-finder would determine that either
AUSA Huftalen or the Doe defendants were acting outside the scope
of their employment. For this reason, an FTCA suit against the
United States is the exclusive avenue by which Schomaker may
pursue state law claims for damages based on the actions of
Huftalen or the Doe defendants. See McCloskey v. Mueller, 446
F.3d 262, 266 (1st Cir. 2006).
-20- C. FTCA Claims Against the United States
Under the FTCA's limited waiver of the federal government's
sovereign immunity, a plaintiff must file an administrative claim
within two years after the accrual of the claim. 28 U.S.C. §
2401(b); Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir.
2002). If the plaintiff does not do so, then his FTCA suit must
be dismissed. " [C]ompliance with this statutory reguirement is a
jurisdictional prereguisite to suit that cannot be waived." Id.
The accrual of Schomaker's FTCA claim is governed by federal
law. United States v. Kubrick, 444 U.S. Ill, 118 (1979). Like
his Bivens claims, Schomaker's FTCA claim accrued when he
discovered, or in the reasonable exercise of diligence should
have discovered, the factual basis for his cause of action. Id.
at 121-24; Gonzalez, 284 F.3d at 288.
For the reasons discussed above, Schomaker's state law
claims must be folded into his FTCA claims. Thus, Schomaker now
asserts the following claims under the FTCA: (1) conversion,6 (2)
6 Schomaker refers to this as his "trover and conversion" claim. In earlier centuries, "trover" was a particular form of tort action alleging conversion. See Restatement (Second) of Torts § 222A cmt. a (1965) (discussing the origins and history of the old common law action of trover). In modern usage, however, trover is indistinguishable from conversion. For the sake of clarity, I therefore refer to Schomaker's "trover and conversion"
-21- theft by misapplication of property, and (3) common-law fraud.7
I address each of these potential FTCA claims in turn.
Conversion is "an intentional exercise of dominion or
control over a chattel which so seriously interferes with the
right of another to control it that the actor may justly be
required to pay the other the full value of the chattel." Muzzy
v. Rockingham County Trust Co., 113 N.H. 520, 523 (1973). As
with Schomaker's Fourth Amendment Bivens claim, the statute of
limitations began running when the U.S. Attorney's Office's
exercise of dominion over the property became wrongful; that is,
when the office ignored Schomaker's 1998 request to release his
property and continued to hold it in their custody. See
Restatement (Second) of Torts § 237 (1965) ("[o]ne in possession
of a chattel as bailee or otherwise who, on demand, refuses
without proper qualification to surrender it to another entitled
to its immediate possession, is subject to liability for its
claim as a conversion claim.
7 In Count 7 of his Complaint, Schomaker describes the latter cause of action as being the "tort of fraudulent concealment," which is, as defendants point out, not a civil cause of action. In his Opposition to Defendants' Motion to Dismiss or for Summary Judgment, however, Schomaker relies upon Savitz v. Weinstein, 395 Pa. 173 (1959), as to Count 7. Savitz is a case involving common-law fraud. Accordingly, I construe Count 7 as asserting common-law fraud.
-22- conversion"); see also Restatement (Second) of Torts § 237 cmt. g
(1965) (noting that refusal to surrender the chattel may be found
by implication from the defendant's conduct). For the same
reasons that eguitable tolling is inappropriate for Schomaker's
Fourth Amendment Bivens claim, eguitable tolling is inappropriate
for his conversion claim. Thus, Schomaker's claim seeking
damages for conversion is barred by the two-year statute of
limitations for filing an administrative claim under the FTCA.
Theft by misapplication of property is a criminal offense
that private citizens have no standing to enforce in a civil
suit. See N.H. Rev. Stat. Ann. § 637:10. Thus, this claim fails
as a matter of law, regardless of the statute of limitations.
Under the common law cause of action for fraud, a person who
justifiably relies on the misrepresentations made by another for
the purpose of inducing that person to act or to refrain from
action in reliance upon it, can recover pecuniary losses incurred
as a result of that reliance. Gray v. First N.H. Banks, 138 N.H.
279, 283 (1994). "The party seeking to prove fraud must
establish that the other party made a representation with
knowledge of its falsity or with conscious indifference to its
truth with the intention to cause another to rely upon it." Van
-23- Per Stok v. Van Voorhees, 151 N.H. 679, 682 (2005) (internal
quotations omitted). Here, however, there is no evidence that
AUSA Huftalen or the Doe defendants ever made such a
misrepresentation. Rather, they merely failed to respond to
Schomaker at all. While this can easily support an inference
that the defendants did not plan on returning Schomaker's
property, it cannot reasonably support an inference that they
made any misrepresentations of fact to Schomaker. Thus, the
statute of limitations never started running on Schomaker's fraud
claim because the triggering event of a fraudulent misrepresen
tation never occurred. Without such a misrepresentation,
Schomaker cannot successfully assert fraud by the defendants.
IV. CONCLUSION
Based on the foregoing, even making all reasonable factual
inferences in Schomaker's favor, there is insufficient evidence
from which a reasonable fact-finder could find in Schomaker's
favor. Accordingly, Defendants' Motion for Summary Judgment
(Doc. No. 29) is granted, and Schomaker's Motion for Summary
Judgment (Doc. No. 9) is denied. The clerk is directed to enter
judgment accordingly.
-24- SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
May 13, 2008
cc: John Edward Schomaker, pro se Evan J. Roth, Esq.
-25-