Veale v. Keene Publishing

• Court: District Court, D. New Hampshire
• Decided: May 11, 1998
• Docket: CV-98-135-SD
• Status: Published

Opinion

Veale v. Keene Publishing CV-98-135-SD 05/11/98 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

David T . Veale

v. Civil No. 98-135-SD

Keene Publishing Corporation; Thomas Carney; Other Unknown Employees

O R D E R

This matter is before the court on an objection to a Report

& Recommendation (R & R) of the magistrate judge.1 The court

also considers the effect of plaintiff's amended complaint.

1. Background

It appears that on March 1 , 1995, The Keene Sentinel

published a brief news article reporting that one David Veal, age

39, of Keene, New Hampshire, was arrested for the driving of his

van upon a public sidewalk. On March 3, 1995, the Sentinel

published a clarification to the effect that plaintiff pro se

^As with other of the pleadings, this objection is untimely filed, as it was not filed within the ten-day limit of 28 U.S.C. § 636(b)(1)(C). However, the court considers the objection in the light of justice and judicial efficiency. David T. Veale, of different age, address, and spelling of name

than the arrestee, was not to be confused with the arrestee.

On March 4, 1998, plaintiff pro se filed in this court what

he described as a "Complaint for Libel" against the Keene

Publishing Corporation.2 The action was assigned to Judge

McAuliffe, who reviewed it and, properly finding no allegations

that would support federal jurisdiction, ordered the claim

dismissed. See 98-114-M, Veale v. Keene Publishing Corp.3

Undaunted, on March 11, 1998, plaintiff pro se filed what he

now styled as a "Complaint for Violation of Civil Rights," naming

as defendants therein Keene Publishing Corporation, Thomas

Carney, and other unknown employees of the publisher. Assigned

to this judge, the complaint was initially reviewed by the

magistrate judge. 28 U.S.C. § 636(b)(1)(B); Local Rule

4.3(d) (1) (B) .

2The applicable statute of limitations. New Hampshire Revised Statutes Annotated (RSA) 508:4, II, requires that an action for libel be brought "only within three years of the time the cause of action accrued."

3Imbued with a spirit of charity. Judge McAuliffe also directed that plaintiff's filing fee be returned to him because of his pro se status. However, among the multitude of pro se litigants who have filed actions in this court, Mr. Veale may more probably be classified as a "professional." See Veale v. State of N . H . , et a l , Civ. No. 90-37-D; Veale v. Town of Marlborough, Civ. No. 90-503-D; Veale v. Town of Marlborough, Civ. No. 92-355-SD.

2 On April 14, 1998, the magistrate judge filed his R & R,

which was to the effect that this complaint should be dismissed

for failure to invoke the court's federal question subject matter

jurisdiction. Document 2. On May 4, 1998, Veale filed his

objection to the R & R (document 3), together with a proposed

amended complaint (document 4).

2. Discussion

a. Objection to R & R

As required, the court has conducted the requisite de novo

review of the R & R. Elmendorf Grafica, Inc. v. D.S. America

(East), Inc., 48 F.3d 46, 49 (1st Cir. 1995). For reasons that

follow, we accept same without modification.

Liberally read, the complaint, which invokes 42 U.S.C. §

1985(3),4 alleges a conspiracy to libel Veale made by the

publisher and its employees. Construed as a "private

conspiracy," the allegations of the complaint must show (1) that

some racial, or perhaps otherwise class-based, invidiously

discriminatory animus lay behind the conspirators' actions, and

442 U.S.C. § 1985(3) confers a private right of action for injuries occasioned when "two or more persons . . . conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws. . . ."

3 (2) that the conspiracy is aimed at interfering with rights that

are protected against private, as well as official, encroachment.

Libertad v. W e l c h , 53 F.3d 428, 446-47 (1st Cir. 1995) (citing

Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 267-68

(1993) ) .

The complaint fails to meet either of these requirements of

section 1985(3), and, as the magistrate judge correctly found, a

failure to allege the necessary right protected against private

action fails to invoke this court's federal question subject

matter jurisdiction. Accordingly, the recommendation that the

complaint be dismissed was a correct one.

b. The Amended Complaint

Thinking perhaps that the addition of public officials might

somehow obviate the problems raised by the R & R, the amended

complaint seeks to add as party defendants the arresting police

officer, the Keene Police Department, and the City of Keene.

However, the amended complaint fails for the same reasons as did

the second complaint.

It is now clear that there is "no principled basis for

distinguishing between public and private conspiracies" pursuant

to 42 U.S.C. § 1985(3). Aulson v. Blanchard, 83 F.3d 1, 4 (1st

Cir. 1996). Again, plaintiff is unable to establish "invidious

4 discrimination" against an identifiable group. Moreover, his

inclusion of alleged violations of the state constitution do not

serve to advance his quest for federal subject matter

jurisdiction.

3. Conclusion

On three separate occasions within a single month, David T.

Veale has attempted to establish a claim that falls within the

federal subject matter jurisdiction of this court. On each such

occasion, he has failed to do so.

The objection to the R & R of the magistrate judge is

overruled, and the R & R is accepted without modification. The

amended complaint is dismissed for its failure to set forth

pleadings which establish federal subject matter jurisdiction in

this court.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

May 8, 1998

cc: David T. Veale, pro se