Veale v. U.S.A.

• Court: Court of Appeals for the First Circuit
• Decided: May 6, 1993
• Docket: 92-2401
• Status: Published

Opinion

USCA1 Opinion

May 6, 1993
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 92-2401 

                          SCOTT W. VEALE AND DAVID T. VEALE,
                               Plaintiffs, Appellants,

                                          v.

                              TOWN OF MARLBOROUGH, N.H.,
                                 Defendant, Appellee.

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        No. 92-2402

                          SCOTT W. VEALE AND DAVID T. VEALE,
                               Plaintiffs, Appellants,

                                          v.

                          UNITED STATES OF AMERICA, ET AL.,
                                Defendants, Appellees.
                                 ____________________

                    APPEALS FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Shane Devine, U.S. District Judge]
                                           ___________________
                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                          Torruella and Cyr, Circuit Judges.
                                             ______________
                                 ____________________

            Scott W. Veale and David T. Veale on brief pro se.
            ______________     ______________

____________________

____________________

Per Curiam.   Appellants,  Scott  W. and  David  T.
                      __________

            Veale, appeal the dismissal  of complaints they filed  in two

            separate  actions in  the district  court.   Appellants based

            their complaints on 42 U.S.C.    1983.  These cases concern a

            long-running dispute as to whether appellants are the  owners

            of  real property located in New Hampshire.  The actions were

            consolidated below and have been consolidated for purposes of

            appeal.  In affirming the judgments of the district court, we

            will discuss the merits of each action in turn.1

                                I.  Appeal No. 92-2402
                                I.  Appeal No. 92-2402
                                _   __________________

                      A.  The Complaint.
                          _____________

                      In the  complaint filed in  this action, appellants

            named  as defendants  Charles Eggert,  a private  citizen and

            attorney, the State  of New Hampshire  and the United  States

            government.

                      Count I concerns  actions taken by  Eggert in  1984

            relating  to   certain  parcels  of  real   estate  in  which

            appellants  claim an  interest.   Appellants aver  that their

            parents had conveyed these properties to them in 1984 through

            deeds prepared  by  Eggert.    Appellants  then  allege  that

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            1.  The  district  court   dismissed  the  complaints  before
            defendants were served with process.  Because appellants were
            proceeding in forma pauperis  this implicates the concerns of
            Neitzke  v.   Williams,  490  U.S.  319   (1989),  that  such
            _______       ________
            complaints  should  not  be   dismissed  sua  sponte  without
            adequate notice to plaintiffs and an opportunity to cure  the
            complaint's deficiencies.  However, in this case, the matters
            were referred first  to a magistrate judge  who filed reports
            and recommendations noting the deficiencies.  Appellants then
            responded by filing objections which explained in more detail
            their  allegations.  Only after the objections were filed did
            the  district   court  dismiss  the  complaints.     This  is
            sufficient under Neitzke.  See Purvis v. Ponte, 929 F.2d 822,
                             _______   ___ ______    _____
            826-27 (1st Cir. 1991) (per curiam).

Eggert,  who  represented appellants'  parents  in bankruptcy

            proceedings  apparently initiated  in 1983,  modified certain

            purchase  and  sale agreements  and  filed  pleadings in  the

            bankruptcy court in an effort to deprive appellants of  their

            interests in the parcels of land.

                      In Count  II, appellants  attack the action  of the

            bankruptcy court in approving  the sale of two of  the pieces

            of  land in which appellants  claimed an interest.   From the

            papers  attached  to  the  complaint,  it  appears  that  the

            bankruptcy court  held that  appellants had not  acquired any

            rights  under  the   deeds  allegedly  prepared   by  Eggert.

            Appellants assert that the bankruptcy court acted outside its

            jurisdiction and  precluded the resolution of  the underlying

            dispute concerning title to the land in question by approving

            the  sale.   As a  result, appellants  allege that  they were

            deprived of their property without due process of law.

                      Count  III  relates  to  an  action  initiated   by

            appellants in 1986  in a  New Hampshire superior  court.   In

            this state case, appellants sought to  recover the parcels of

            land that had been  sold upon the approval of  the bankruptcy

            court.    According  to  the order  attached  to  appellants'

            complaint, the  state court  found that the  determination of

            the bankruptcy court that appellants had acquired no interest

            in the property precluded  appellants from having standing to

            assert any claims to the real estate.  Appellants allege that

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the superior court violated their rights under the Fourteenth

            Amendment.

                      Count  IV raises  similar  arguments.   In 1987,  a

            state action  was commenced by private  individuals to enjoin

            appellants  from  cutting wood  on  property  owned by  these

            individuals.    Apparently,  appellants  again  attempted  to

            assert their ownership of the property in question based upon

            the deeds described in  Count I.  The  state court relied  on

            the order of the bankruptcy court to hold  that the issue had

            been  decided  adversely to  appellants.   The action  by the

            state court, according to  appellants, deprived them of their

            property  without due  process  of law  in  violation of  the

            Fourteenth Amendment.

                      Finally,  in Count  V, appellants  allege that  all

            three defendants "acted in concert with each other to deprive

            plaintiffs of all of the property and homestead interests . .

            . without the due  process of law . . . in violation of . . .

            the Fourteenth Amendment to the United States Constitution."

                      B.  Discussion.
                          __________

                      Appellants'  complaint  fails for  several reasons.

            First,  we note that because    1983 applies  only to actions

            taken under color  of state  law, the United  States and  the
                                  __________

            bankruptcy court obviously are not proper defendants.  In any

            event, appellants already have  received review of the orders

            of the bankruptcy  court.   They state that  they pursued  an

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appeal  to  the district  court in  September  1984.   See 28
                                                                   ___

            U.S.C.    158(a).  The decision of the district court is then

            reviewable in this  court under   158(d).   Again, appellants

            indicate that they sought such review.

                      Appellants'   claims  against  the   state  of  New

            Hampshire concern the actions  taken by the state court.   As

            such,  they are governed by Rooker v. Fidelity Trust Co., 263
                                        ______    __________________

            U.S.  413 (1923).  In Rooker, the  Supreme Court held that it
                                  ______

            was the only federal court which could entertain a proceeding

            to "reverse or modify"  a state court judgment.   Id. at 416.
                                                              ___

            Thus,  this court  has no  jurisdiction  to review  the state

            court proceedings about which appellants complain.

                      Finally,  appellants cannot  sue Eggert,  a private

            attorney,  under    1983.   "It  is  black-letter law  that a

            showing  of  interference  with a  constitutionally-protected

            right  by  someone  acting under  color  of  state  law is  a

            prerequisite to a    1983  action."  Malachowski  v. City  of
                                                 ___________     ________

            Keene,  787 F.2d  704, 710  (1st Cir.) (per  curiam) (private
            _____

            attorney,  sued   for  actions  taken  as  a  court-appointed

            counsel, is  not  acting under  color  of state  law),  cert.
                                                                    _____

            denied, 479 U.S. 828 (1986).   Appellants' assertion in Count
            ______

            V  that  Eggert  acted  "in  concert"  with  the  two   other

            defendants is insufficient to meet this requirement.

                      "Although it  is true that  private parties jointly

            engaged with  state or local officials  in prohibited conduct

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can be  said to act  under color of  state law . .  . general

            allegations of cooperation between private individuals  and .

            . .  government agencies" are  not enough  to state a    1983

            action.   Glaros v. Perse, 628 F.2d  679, 685 (1st Cir. 1980)
                      ______    _____

            (citation omitted).   The nature of the  relationship and the

            factual basis of the alleged conspiracy must be "pled in some

            detail."  Id.  No such showing has been made in this case.
                      ___

                               II.  Appeal No. 92-2401
                               II.  Appeal No. 92-2401
                               __   __________________

                      A.  The Complaint.
                          _____________

                      The complaint in this appeal lists only the town of

            Marlborough, New  Hampshire, as  defendant.  However,  in the

            body of the 60-paragraph, 13-count complaint, appellants name

            other  defendants.   Count  I lays  out  the background.   It

            states that in November  1980, appellants discovered that the

            town's tax  maps were drawn  in such a  way so as  to deprive

            them  of  certain real  estate they  allegedly  owned.   As a

            result  of their  discovery, appellants  claim that  the town

            developed a bias against them and prohibited them from having

            the tax maps corrected so that title to the real estate could

            be  resolved.  The rest of the complaint provides more detail

            concerning the town's attempts  to "hinder, oppress, threaten

            and  intimidate" appellants  in  their efforts.   The  town's

            actions include the following:

                      (a).  In April 1981, appellants claim that a police

            officer sat and watched  while appellants were threatened and

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assaulted by certain  residents of  Marlborough.   Appellants

            sought relief by going to the police station where the police

            again ignored their request  for assistance.  Also, appellant

            Scott Veale  claims that the police chief  "arrested" him for

            fifteen  minutes  after  which   the  police  chief   ordered

            appellants to leave town.  (Count II).

                      (b).   In November 1982, appellants  state that the

            town selectmen denied them a building permit which would have

            allowed  them  to  place   their  mobile  home  on  land   in

            Marlborough.   Appellants  claim  that they  were denied  the

            permit  even though  the zoning  laws permitted  such action.

            Appellants suggest  that the  town's actions were  biased and

            based  on  a dispute  between  appellants  and other  private

            individuals concerning title to the land.  (Count III).

                      (c).   In October 1984, appellants  state that they

            were  charged with violating the  town's zoning laws based on

            the presence  of  the mobile  home  on land  in  Marlborough.

            Appellants  state that these charges ultimately were dropped.

            (Count  IV).    Also   in  1984,  appellants  claim   that  a

            Marlborough dog  officer "kidnapped" one of  appellants' dogs

            allegedly on  the ground that neighbors  had complained about

            violations of the leash law.  Appellants aver that they never

            were able to retrieve the dog.  (Count V).

                      (d).  In May 1985, appellants allege that they were

            arrested for cutting  trees and removing wood from land which

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they supposedly owned but  which the 1980 tax  maps indicated

            belonged  to others.  Appellants claim that the wood they had

            cut  was  confiscated, taken  to  a  sawmill and  later  sold

            without  appellants' knowledge.   Appellants also  claim that

            they  were forced to plead guilty to these charges and, thus,

            were   denied  their  right  to  a  fair  trial  by  a  jury.

            Additionally, they claim  that a public defender told them to

            raise,  as a defense, the dispute concerning who had title to

            the  real  estate  in question.    However,  the  state court

            refused to consider  the property  issue and,  in an  alleged

            abuse of discretion, found appellants guilty.  (Count VI).

                      (e).   Appellants claim that in  February 1986, the

            town removed  appellants' dump truck from the  parking lot of

            the  town  library.     A  Marlborough  police  officer  then

            allegedly  arrested appellant  Scott  Veale for  theft of  an

            overdue library  book.    Scott Veale  later  was  found  not

            guilty.   (Count  VII).   Also in  February 1986,  appellants

            claim  that the town refused to let them register their motor

            vehicles  or  register  to vote  as  residents  of the  town.

            Appellants  state that  they were  forced  to obtain  a court

            order directing the town to provide appellants with the above

            relief.  (Count VIII).

                      Later, in  April  1986, appellants  allegedly  were

            arrested  for threatening to shoot  the tires on  a tow truck

            the  police department stated it  would use to  remove one of

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appellants' vehicles from  the land on  which it was  parked.

            Even though appellants apparently were found not guilty after

            trial, they charge that they had  spent five days in jail for

            contempt.    Appellants claim  that  the  contempt order  was

            improperly based on  their request for a  continuance so that

            they  could  obtain  court-appointed counsel.    (Count  IX).

            Finally,  in  May  1986,  appellants charge  that  they  were

            arrested for littering during their attempt to relocate their

            mobile  home.   As a  result, appellants claim,  their mobile

            home  was  impounded  and  personal  property  belonging   to

            appellants was  destroyed.   At trial, appellants  state that

            they were found not guilty.  (Count X).

                      (f).   In July  1989, appellants again  requested a

            building permit  from the town  selectmen so that  they could

            locate  their mobile home on land  in Marlborough.  According

            to appellants,  they  were  told that  the  zoning  laws  had

            changed after 1986 and mobile homes were no longer allowed in

            Marlborough.   Appellants,  believing they possessed  a "pre-

            existing non-conforming use," moved their mobile home back to

            Marlborough in November 1989.

                      Two  days later,  appellants state  that they  were

            charged  with  violations of  the  town's zoning  laws.   The

            mobile  home was  seized and  subsequently sold  at a  public

            auction.    They  claim  that  they  were  not provided  with

            adequate notice of the  seizure.  (Count XI).   Similarly, in

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1990, appellants were  charged with  zoning violations  after

            moving their camper onto property in Marlborough.  They claim

            that they  were ordered to  remove the camper  without proper

            notice and  a sufficient hearing.  At  a preliminary hearing,

            appellants attempted to raise their claim that they owned the

            land  in   question  but,   they  assert,  were   denied  the

            opportunity to do so.  (Count XII).

                      The last  count recites that the  town, in November

            1990,  again refused  to allow  appellants to  register their

            motor  vehicles and  refused  to let  appellants register  to

            vote.  Accordingly, appellants filed suit in federal district

            court, and, after a  preliminary hearing, allegedly  obtained

            an order directing  the town to  allow appellants to  declare

            Marlborough as  their residence.  Appellants  charge that the

            town still has not let them register their motor vehicles and

            pistols.  (Count XIII).

                      Appellants aver  that  the above  actions  violated

            their Fourteenth Amendment  equal protection and  due process

            rights,  their  Fourth  Amendment  rights  to  be  free  from

            unlawful arrest and their Fifteenth Amendment rights to vote.

                      B.  Discussion.
                          __________

                      In their brief, appellants identify  only one issue

            for appeal:  whether the town of Marlborough deprived them of

            their  property rights without due process of law in 1986 and

            1989 when  it denied appellants' applications  for permits to

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place   their   mobile   home   on  land   in   Marlborough.2

            Specifically, appellants  claim  that they  were  denied  the

            right  to  a hearing  on  the  underlying dispute  concerning

            whether they  actually owned the land upon  which they wished

            to park their mobile  home and other vehicles.   This dispute

            essentially concerns  zoning decisions  made by the  town and

            its board of selectmen.  As such, it fails.

                      "[F]ederal  courts do  not  sit as  a super  zoning

            board or a zoning board  of appeals."  Raskiewicz v. Town  of
                                                   __________    ________

            New Boston, 754  F.2d 38,  44 (1st Cir.),  cert. denied,  474
            __________                                 ____________

            U.S. 845 (1985).  In the absence of a "fundamental procedural

            irregularity  [or]  racial  animus,"  a  conventional  zoning

            dispute does not implicate constitutional concerns.  Creative
                                                                 ________

            Environments,  Inc.  v. Estabrook,  680  F.2d  822, 833  (1st
            ___________________     _________

            Cir.),  cert. denied, 459 U.S. 989 (1982); Chongris v. Bd. of
                    ____________                       ________    ______

            Appeals  of Town of Andover,  811 F.2d 36,  41-42 (1st Cir.),
            ___________________________

            cert.  denied, 483 U.S.  1021 (1987).   Rather, such disputes
            _____________

            are  primarily of  concern  only  to  the  state.    Creative
                                                                 ________

            Environments, 680 F.2d at 833.
            ____________

                      Appellants' allegation that the board  of selectmen

            erred in applying  the zoning law because  of their incorrect

            assumption  that  appellants  did  not own  the  property  in

____________________

            2.  Appellants  have  not briefed  any  of  the other  claims
            asserted  below.  Thus, they  are waived.   See Gaudreault v.
                                                        ___ __________
            Municipality of Salem, 923 F.2d 203, 205 n.1 (1st Cir. 1990),
            _____________________
            cert. denied, 111 S. Ct. 2266 (1991).
            ____________

                                         -11-

question  is insufficient to state  a   1983  claim.  Indeed,

            "even abridgements of state law committed in bad faith do not

            necessarily  amount to  unconstitutional deprivations  of due

            process."   Chongris,  811  F.2d at  43.   See  also  Chiplin
                        ________                       _________  _______

            Enterprises, Inc.  v. City  of Lebanon,  712 F.2d  1524, 1528
            _________________     ________________

            (1st Cir. 1983) (outright violation in denying a license does

            not  automatically  raise  a  due  process  claim);  Creative
                                                                 ________

            Environments, 680 F.2d at 833.
            ____________

                      Further,  chapter 677 of  the New Hampshire Revised

            Statutes provides  for rehearings of  local zoning  decisions

            and appeals of  such decisions to the New  Hampshire superior

            courts.   See  N.H. Rev.  Stat. Ann.     677:2,  677:3, 677:4
                      ___

            (1986 and Supp. 1991).   We have held that  "where . . .  the

            state  offers  a  panoply   of  administrative  and  judicial

            remedies, litigants may  not ordinarily obtain federal  court

            review of local zoning  and planning disputes by means  of 42

            U.S.C.     1983."   Raskiewicz,  754  F.2d  at  44; see  also
                                __________                      ___  ____

            Chongris, 811 F.2d at 41.
            ________

                      Although appellants aver in  their brief on  appeal

            that they were  denied such procedures, this claim  is belied

            by  a document  filed in  the district  court which  lists at

            least  fifteen cases  concerning appellants  and the  town of

            Marlborough.3   Indeed,  in a  1990 zoning  action, the  town

____________________

            3.  This list  -- attached  to appellants' objections  to the
            report  and recommendation  of  the magistrate  judge in  the
            companion  case  --  includes   over  fifty  cases  to  which

                                         -12-

filed a  motion to amend  to add a request  that the superior

            court   specifically  consider   the  question   of  property

            ownership.    This  was   done  in  response  to  appellants'

            allegation in  their answer filed in this  zoning action that

            they had been denied a forum in which to litigate this issue.

            In the face  of such  evidence, it is  plain that  appellants

            have had more than a sufficient opportunity to have the state

            and federal courts address their claims.

                      Based  upon the foregoing,  we affirm the judgments
                                                     ______

            of  the  district  court   in  both  appeals.    Accordingly,

            appellants'  motions   for   oral  argument   and   expedited

            consideration are denied.

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            appellants were parties spanning the years 1982 to 1992.

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