Brown v. McConkey et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Steven Brown
v. Case No. 25-cv-77-LM-AJ
Mark McConkey, et al.
REPORT AND RECOMMENDATION
Self-represented plaintiff Steven Brown filed a complaint
(Doc. No. 1) against several individuals1 he alleges violated his
constitutional rights in connection with a zoning dispute in
Ossipee, New Hampshire. Presently before the court for a
recommended disposition is defendants Smith, Sawyer and Babbin’s
motion to dismiss (Doc. No. 23), in which they argue that the
complaint should be dismissed because it complaint fails to
state a viable claim for relief or, alternatively pursuant to
the Younger doctrine. The court has also reviewed Mr. Brown’s
objection (Doc. No. 25) and the parties’ reply (Doc. No. 30) and
sur-reply (Doc. No. 38). As explained more fully below, the
motion should be granted.
1 The defendants are Ossipee Police Chief Don Babbin,
Selectman Jonathan Smith, Town Administrator and Zoning Officer
Matt Sawyer, and Mark McConkey, a state senator and property
owner. McConkey has not joined in the motion to dismiss.
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Legal Standard
A. Motion to Dismiss
When evaluating a motion to dismiss for failure to state a
claim under Rule 12(b)(6), the court asks whether the plaintiff
has made allegations in her complaint that are sufficient to
render her entitlement to relief plausible. See Manning v.
Boston Med. Ctr. Corp., 725 F.3d 34, 43 (1st Cir. 2013). The
court accepts all well-pleaded facts as true and draws all
reasonable inferences in the non-moving party's favor. Hamann v.
Carpenter, 937 F.3d 86, 88 (1st Cir. 2019). The court, however,
disregards conclusory allegations that simply parrot the
applicable legal standard. Manning, 725 F.3d at 43.
A. Younger Abstention
The First Circuit has not clearly resolved whether to apply
Rule 12(b)(1) – lack of subject matter jurisdiction -- or Rule
12(b)(6) in deciding whether to abstain from exercising
jurisdiction. See Massachusetts Delivery Ass'n v. Coakley, 671
F.3d 33, 40 n.6 (1st Cir. 2012) (noting that there is a dispute
as to which standard to use when evaluating Younger abstention
among district courts in the First Circuit); Jafri v. New
Hampshire Supreme Ct. Comm. on Character & Fitness, No. 1:22-CV-
0039-JL, 2022 WL 10600019, at *1 (D.N.H. Oct. 18, 2022) (noting
dispute within circuit and applying the Rule 12(b)(1) standard),
aff'd, No. 22-1802, 2023 WL 7294994 (1st Cir. Oct. 23, 2023);
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see also Marshall v. Bristol Superior Ct., 753 F.3d 10, 17 (1st
Cir. 2014) (noting that Younger is “not a jurisdictional bar”
but is instead a “prudential limitation” on the court's exercise
of properly-held jurisdiction).
“A primary difference between the two [standards] is that,
under Rule 12(b)(1), the district court may weigh the evidence
and make factual determinations, if necessary, to determine
whether it has jurisdiction to hear the case.” AUI Partners LLC
v. State Energy Partners LLC, 742 F. Supp. 3d 28, 39–40 (D.
Mass. 2024) (quoting Massachusetts Delivery Ass'n, 671 F.3d at
40 n.6). Here, as the court’s analysis considers facts in the
complaint, attachments to the complaint, and publicly available
documents (including documents and dockets from the state court
proceedings), all of which are permissibly considered under
either rule, the court need not resolve the issue of whether to
apply Rule 12(b)(6) or Rule 12(b)(1). See Action Network v.
Maine, 679 F. Supp. 2d 140, 144 & n.2 (D. Me. 2010) (choosing
not to apply either Rule 12(b)(1) or Rule 12(b)(6) to the
Younger analysis because the question is “academic” and the
parties do not dispute “the existence of content of the
pertinent documents”).
Factual Background
The complaint contains few facts. Plaintiff is a resident
of West Ossipee, New Hampshire. Compl. (Doc. No. 1) ¶ 4.
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Defendant Mark McConkey is a state senator and property owner.
Id. ¶ 5. Defendant Jonathan Smith is “a state representative and
town official holding multiple roles.” Id. Defendant Matt Sawyer
is the Ossipee Town Administrator. Id. Defendant Don Babbin is
the Chief of the Ossipee Police Department. Id.
Mr. Brown alleges that “on or around fall of 2023, a county
employee unlawfully trespassed onto [his] property without
consent or legal justification.” Id. ¶ 6. Mr. Brown further
alleges that, as a result of the “unauthorized entry, [he] has
been subject to unlawful fines and enforcement actions that have
not been applied to other New Hampshire residents in similar
situations.” Id. ¶ 7. The Town has brought two zoning
enforcement actions against Mr. Brown in Carroll County Superior
Court. The first, filed on May 30, 2024, was voluntarily
dismissed on May 26, 2025. See Town of Ossipee v. Steven Brown,
Case No, 212-2024-cv-100 (Carroll Super. filed May 30, 2024).
The second, initiated on July 22, 2025, remains pending. The
complaint in the pending case alleges that Mr. Brown is living
in a manufactured home on his property with neither an occupancy
permit nor a sewage discharge permit. See Town of Ossipee v.
Steven Brown, Case No, 212-2025-cv-156 (Carroll Super.) State
Court Compl. (Doc. No. 30-1) at 3.
In Count I, Mr. Brown asserts that the defendants violated
his Fourth Amendment rights and are liable for common law
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trespass when they entered his property. Compl. (Doc. No. 1) ¶
8. In Count II, he alleges that the defendants’ discriminatory
enforcement of local law violated his right to equal protection
of the law. Id. ¶ 9. In Count III, Mr. Brown alleges that the
defendants violated 42 U.S.C. § 1983 by acting under color of
state law to deprive him of his constitutional rights. Id. ¶ 10.
Discussion
A. Failure to State a Claim
The court begins with an analysis under Fed. R. Civ. P.
12(b)(6), as the complaint falls far short of stating a viable
cause of action. The court first notes that 42 U.S.C. § 1983 is
not a separate cause of action, but is instead a statutory
vehicle through which a plaintiff can assert a violation of a
federal right. See Albright v. Oliver, 510 U.S. 266, 271 (1994)
(“Section 1983 ‘is not itself a source of substantive rights,’
but merely provides ‘a method for vindicating federal rights
elsewhere conferred.’” (quoting Baker v. McCollan, 443 U.S. 137,
144, n. 3 (1979)); see also, Goldblatt v. Geiger, 867 F. Supp.
2d 201, 203 (D.N.H. 2012). Accordingly, Count III must be
dismissed, but this makes no practical or substantive difference
to the plaintiff, as the court will construe Counts I and II as
though they were brought pursuant to 42 U.S.C. § 1983.
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1. Fourth Amendment
Count I fails to state a claim upon which relief can be
granted. As noted above, Mr. Brown alleges that a “county
employee” entered his property. But no county employee is named
as a defendant. Relatedly, he does not allege that any of the
named defendants entered his property or violated the Fourth
Amendment. Fed. R. Civ. P. 8(a)(2) requires Mr. Brown, at a
minimum, to provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Mr. Brown’s
failure to specify which defendant’s acts are at issue is fatal
to this count. See Bagheri v. Galligan, 160 F. App'x 4 (1st Cir.
2005) (finding complaint deficient because it did not state
clearly which defendant committed each of the alleged wrongful
acts).
2. Equal Protection
Mr. Brown’s equal protection claim is based on the sole
allegation that he “has been subject to unlawful fines and
enforcement actions that have not been applied to other New
Hampshire residents in similar situations.” Compl. (Doc. No 1)
¶ 7. As with his Fourth Amendment claim, this count cannot
support a claim for relief.
The Equal Protection Clause of the Fourteenth Amendment
requires that similarly situated persons are to receive
substantially similar treatment from the government. U.S.
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Const., amend. XIV, § 1 (“No State shall . . . deny to any
person within its jurisdiction the equal protection of the
laws.”); Tapalian v. Tusino, 377 F.3d 1, 5 (1st Cir. 2004).
Where, as here, a plaintiff does not claim membership in a
protected class or group, an equal protection claim may be based
on a “class of one.” Donovan v. City of Haverhill, 311 F.3d 74,
77 (1st Cir. 2002) (quoting Village of Willowbrook v. Olech, 528
U.S. 562, 564 (2000) (per curiam)). When pleading an equal
protection claim based on a class of one, the plaintiff must
allege that he has “been intentionally treated differently from
others similarly situated and that there is no rational basis
for the difference in treatment.” See id. (quoting Olech, 528
U.S. 562 at 564). Mr. Brown’s claim falters at the first step,
as the complaint fails to allege facts that support his legal
conclusion that he was treated differently from a similarly
situated entity.
To satisfy the “similarly situated” element, a plaintiff
must demonstrate that it was similarly situated “in all relevant
respects.” Id. (citation omitted). When a complaint cannot
reasonably be construed to permit such a finding, dismissal is
warranted. Id. “The ‘similarly situated’ requirement must be
enforced with particular rigor in the land-use context because
zoning decisions ‘will often, perhaps almost always, treat one
landowner differently from another.’” Cordi–Allen v. Conlon, 494
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F.3d 245, 251 (1st Cir. 2007) (quoting Olech, 528 U.S. at 565)
(Breyer, J., concurring)). “It is inadequate merely to point to
nearby parcels in a vacuum and leave it to the municipality to
disprove conclusory allegations that the owners of those parcels
are similarly situated.” Id.
Mr. Brown’s complaint contains no facts regarding either
the nature of the enforcement action against him or any
allegations regarding treatment of similarly situated
landowners, other than the conclusory and unsupported claim of
“actions that have not been applied to other New Hampshire
residents in similar situations.” The vague and conclusory
reference falls far short of what is necessary to survive a
motion to dismiss. See SEC v. Tambone, 597 F.3d 436, 442 (1st
Cir. 2010) (en banc) (“If the factual allegations in the
complaint are too meager, vague, or conclusory to remove the
possibility of relief from the realm of mere conjecture, the
complaint is open to dismissal.”); see Cordi–Allen, 494 F.3d at
252 (affirming grant of summary judgment where land-use
plaintiff's allegations “fail[ed] to account for the fact that
‘[v]arious factual traits, circumstantial nuances, and
peculiarities can set entities apart, rendering them, by virtue
of their differences, amenable to disparate treatment.’”)
(quoting Racine Charter One, Inc. v. Racine Unified Sch. Dist.,
424 F.3d 677, 681 (7th Cir. 2005)); see also Bel-Air Nursing &
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Rehab Ctr., Inc. v. Town of Goffstown, New Hampshire, No. 16-CV-
259-JL, 2018 WL 264091, at *6 (D.N.H. Jan. 2, 2018) (dismissing
equal protection claim in zoning-based case where plaintiff
failed “to allege facts that support its legal conclusion that
it was treated differently from a similarly situated entity.”).
Accordingly, plaintiff’s equal protection claim should be
dismissed for failure to state a claim.
B. Younger Abstention
In their reply memorandum (Doc. No. 30), the defendants,
for the first time, argue that the Younger abstention doctrine
requires dismissal of this case. The court first points out that
“new arguments may not be raised for the first time in a reply
brief.” Villoldo v. Castro Ruz, 821 F.3d 196, 206 (1st Cir.
2016). However, given the quasi-jurisdictional nature of the
abstention issue, see supra, at 2-3, the court will nevertheless
address the argument. See Rotondo v. Salisbury, No. 24-1338,
2024 WL 4529691, at *1 (1st Cir. July 10, 2024) (noting courts’
sua sponte duty to confirm the existence of jurisdiction).
Generally, federal courts “have a ‘virtually unflagging
obligation . . . to exercise the jurisdiction given them.’”
Sirva Relocation, LLC v. Richie, 794 F.3d 185, 191 (1st Cir.
2015) (quoting Co. River Water Conserv. Dist. v. United States,
424 U.S. 800, 817 (1976)). The Supreme Court has, however,
“developed a small cluster of doctrines that either require or
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allow federal courts to defer to state proceedings in particular
circumstances,” including the Younger abstention doctrine, first
established in Younger v. Harris, 401 U.S. 37 (1971). Sirva
Relocation, 794 F.3d at 191. The Younger doctrine “espouse[s] a
strong federal policy against federal-court interference with
pending state judicial proceedings absent extraordinary
circumstances.”
In determining whether to abstain, the Court must examine
(1) “whether a particular state proceeding falls within the
Younger taxonomy”; (2) whether that proceeding is ongoing,
“implicates important state interests[,] and provides an
adequate opportunity to raise federal defenses” (the so-called
Middlesex factors)2; and (3) whether any exceptions to Younger
abstention apply. Sirva Relocation, LLC , 794 F.3d at 192-193.
Matters subject to the Younger abstention doctrine include state
civil proceedings “akin” to prosecutions. Huffman v. Pursue,
Ltd., 420 U.S. 592, 604 (1975). Such civil proceedings have been
described as “civil enforcement proceedings” and “civil
proceedings involving certain orders that are uniquely in
furtherance of the state courts’ ability to perform their
judicial functions.” Sprint Commc'ns, Inc. v. Jacobs, 571 U.S.
69, 73 (2013) (internal quotation marks omitted). The hallmarks
2 See Middlesex County Ethics Comm. v. Garden State Bar
Ass'n, 457 U.S. 423, 433 (1982)
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of such proceedings are that they are “initiated to sanction the
federal plaintiff . . . for some wrongful act,” id. at 79; “a
state actor is routinely a party to the state proceeding and
often initiates the action,” id., and “[i]nvestigations are
commonly involved, often culminating in the filing of a formal
complaint or charges,” id. at 79–80. See Sirva Relocation, LLC ,
794 F.3d at 193 (outlining the “Younger taxonomy”).
As to the first criterion, the state court zoning
enforcement action fits comfortably within Younger’s contours,
as it was initiated by local authorities, following an
investigation to sanction Mr. Brown, the federal plaintiff.
The second criteria presents a slightly closer call, but
the result is the same. Mr. Brown argues that Younger does not
apply because he filed this action on February 20, 2025, long
before the commencement of the current zoning enforcement action
on July 22, 2025. While he is chronologically accurate, this is
not dispositive, as the First Circuit has held that Younger
abstention requires an “ongoing state judicial proceeding,
instituted prior to the federal proceeding (or, at least,
instituted prior to any substantial progress in the federal
proceeding . . . .”). Brooks v. New Hampshire Supreme Ct., 80
F.3d 633, 637 (1st Cir. 1996) (emphasis added). There has been
no substantial progress in this case. It does not appear that
service on the defendants was complete until August 2025, at the
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earliest, and the instant motion will result in the court’s
first substantive ruling. Next, ”the importance of zoning and
land use regulations to state and local interests satisfies . .
. Younger.” Jadlowe v. Town of Dartmouth, No. 05-CV-10516-LTS,
2006 WL 8458383, at *5 (D. Mass. Mar. 3, 2006).
As to the final Middlesex factor, the state court system
can assess whether Mr. Brown’s constitutional rights were
violated during the investigation that led to the enforcement
action. See Brooks v. New Hampshire Supreme Ct., 80 F.3d 633,
637 (1st Cir. 1996) (noting “the basic presumption that state
courts are fully capable of safeguarding federal constitutional
rights”); see also, Buskey v. Town of Hanover, 133 N.H. 318,
322, 577 A.2d 406, 409 (1990) (analyzing whether town zoning
board violated landowner’s federal constitutional rights).
Finally, there are no exceptions to Younger that apply. See
Sirva Relocation, LLC, 794 F.3d at 192 (noting that abstention
is inappropriate when a state proceeding is brought for the
purpose of harassment, if the state forum provides inadequate
protection of federal rights, or if a state statute is
“flagrantly and patently violative of express constitutional
prohibitions.”) (quoting Younger, 401 U.S. at 53). Mr. Brown has
set forth no factual support that would support a claim of
harassment or that the zoning ordinance at issue is
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unconstitutional, and, as noted above, the state court can
protect his federal rights.
D. Claim for Damages
In addition to declaratory and injunctive relief, Mr. Brown
also seeks monetary damages for “emotional distress,
reputational harm, and any financial losses incurred.” Compl.
(Doc. No. 1) at 2. While the court would ordinarily stay damage
claims while abstaining on the equitable claims, see Rossi v.
Gemma, 489 F.3d 26, 38 (1st Cir. 2007), the complaint lacks any
factual support for a damages claim. Indeed, if Mr. Brown
prevails in the state court, he will suffer no zoning violation
penalties. Accordingly, in the alternative to dismissal for
failure to state a claim, the district judge should dismiss this
case on the basis of Younger abstention, a dismissal which
should apply to defendant McConkey.
Conclusion
Based on the foregoing, the district judge should grant
defendants Smith, Sawyer and Babbin’s motion to dismiss for
failure to state a claim or, in the alternative on the basis of
Younger abstention. The claims against defendant McConkey should
be dismissed pursuant to Younger.3
3 Although defendant McConkey did not join in the motion to
dismiss, the court, sua sponte, finds that the above Younger
analysis applies to him with equal force. See Colassi v. Looper,
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Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). The fourteen-day period may be extended
upon motion. Only those issues raised in the objection(s) to
this Report and Recommendation are subject to review in the
district court. See Sch. Union No. 37 v. United Nat'l Ins. Co.,
617 F.3d 554, 564 (1st Cir. 2010). Any issues not preserved by
such objection(s) are precluded on appeal. See id. Failure to
file any objections within the specified time waives the right
to appeal the district court's Order. See Santos-Santos v.
Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
December 4, 2025
cc: Steven Brown, pro se
Counsel of Record
No. CIV. 08-CV-115-L, 2008 WL 2115160, at *2 (D.N.H. May 20,
2008) (analyzing Younger sua sponte); Towle v. N.H. Dep't of
Health & Hum. Servs., No. CIV. 07-CV-65-SM, 2007 WL 2682261, at
*4 (D.N.H. Sept. 7, 2007) (same); see also Weiss v. New York,
No. 22-2326-CV, 2024 WL 2837623, at *1 (2d Cir. June 5, 2024)
(affirming sua sponte dismissal under Younger); Altice USA, Inc.
v. New Jersey Bd. of Pub. Utilities, 26 F.4th 571, 575 (3d Cir.
2022) (same).
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