McCormick v. Beckwith

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kimberly McCormick
v. 	Case No. 20-cv-143-LM
Brian Beckwith
REPORT AND RECOMMENDATION
Plaintiff Kimberly McCormick, appearing pro se, has sued
Brian Beckwith, alleging extortion and violations of various
Constitutional rights. 	The complaint (Doc. No. 1) is before
this magistrate judge for preliminary review, pursuant to 28
U.S.C. § 1915(e)(2) and LR 4.3(d)(1). 	For the reasons that
follow, the district judge should dismiss this lawsuit.
Preliminary Review Standard
The magistrate judge conducts a preliminary review of
pleadings, like McCormick’s, which are filed in forma pauperis.
See LR 4.3(d). 	The magistrate judge may recommend to the
district judge that one or more claims be dismissed if, among
other things, the court lacks jurisdiction, a defendant is
immune from the relief sought, or the complaint fails to state a
claim upon which relief may be granted. 	See 28 U.S.C. §
1915(e)(2); LR 4.3(d). 	In conducting its preliminary review,
the court construes pro se complaints liberally. 	See Erickson
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v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). 	The complaint
must contain “sufficient factual matter, accepted as true, to
‘state a claim to relief.’” 	Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted). 	The court treats as true all
well-pleaded factual allegations, and construes reasonable
inferences in plaintiff’s favor. 	See Ocasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
Background
Plaintiff alleges that in March 2019, the defendant
telephoned her and threatened to burn down her house if she
didn’t sell it to him.1 	When she refused, Beckwith came to the
house she shares with Jason McManus and assaulted McManus after
they asked Beckwith to leave.2 	McCormick further asserts that in
June 2019, she and McManus were served with restraining orders
to which they could not respond because someone slashed their
1Plaintiff alleges that Beckwith made this demand because he
had lost his own home to the United States government, an
assertion that is supported by an order of sale to satisfy tax
liens entered on the docket of the United States District Court
for the District of Maine. 	See United States v. Beckwith et
al., No. 2:18-cv-322-NT, Order of Sale (Doc. No. 45) (D. Me.
February 18, 2020).
2McManus has filed a separate suit related to the alleged
assault. 	See McManus v. Beckwith, No. 20-cv-142-JL (D.N.H.
filed Jan. 17, 2020). 	According to the complaint in that case,
Beckwith is McCormick’s half-sister. 	Id., Complaint (Doc. No.
1).
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car tires. 	Finally, McCormick asserts that she was sent to jail
for a week for having a BB gun. 	Although the allegations are
not specific, the court construes the complaint as alleging that
Beckwith is responsible for the slashed tires and restraining
orders.
Analysis
A. 	Constitutional Claims
McCormick alleges that Beckwith violated her Fourth, Fifth,
Sixth and Fourteenth Amendment rights. 	With certain exceptions
not applicable here, private actors such as Beckwith cannot be
held liable for violations of an individual’s federal
constitutional rights, and 42 U.S.C. § 1983 does not provide a
cause of action for purely private conduct that is alleged to
have an impact on a plaintiff’s federal constitutional rights.
See Georgia v. McCollum, 505 U.S. 42, 53 (1992) (citing Polk
Cty. v. Dodson, 454 U.S. 312 (1981)). 	The complaint contains no
factual assertions suggesting that Beckwith took any action
under color of state law or may otherwise be treated as a state
actor, for purposes of finding him potentially liable for an
alleged violation of McCormick’s federal rights. 	Accordingly,
the district judge should dismiss McCormick’s constitutional
claims.
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B. Extortion
McCormick asserts that Beckwith’s threat constituted
extortion. 	While New Hampshire law criminalizes extortion, see
N.H. Rev. Stat. Ann. ch. 637:5, McCormick cannot state a private
cause of action because “[p]rivate citizens lack a judicially
cognizable interest in the prosecution or nonprosecution of
another.” 	In re Compact Disc Minimum Advert’d Price Antitrust
Litig., 456 F. Supp. 2d 131, 145 (D. Me. 2006) (quoting Linda
R.S. v. Richard D., 410 U.S. 614, 619 (1973)) (internal
quotation marks and alterations omitted). 	Because McCormick’s
allegation does not provide a basis for relief in this action,
the district judge should dismiss McCormick’s claim based on the
defendant’s alleged criminal conduct.
C. 	Potential State Law Claims
To the extent McCormack is asserting state law claims for
property damage (the slashed tires) or abuse of process (the
restraining order), this court should decline to exercise
supplemental jurisdiction over such claims. 	See 28 U.S.C. §
1367(c)(3). 	The district judge should dismiss those state law
claims without prejudice to McCormick’s ability to file a new
action in state court or otherwise litigate those state law
claims in a court of competent jurisdiction.
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Conclusion
For the foregoing reasons, the district judge should
dismiss the complaint in its entirety for failure to state a
federal claim for which relief can be granted, without prejudice
to the plaintiff’s ability to assert claims in a state court of
competent jurisdiction. 	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. 	Failure to file specific
written objections to the Report and Recommendation 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
March 26, 2020
cc: 	Kimberly McCormick, pro se
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