Waite v. Faulkner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Richard A. Waite
v. 	Case No. 21-cv-397-LM
Todd A. Faulkner, et al.
SUPPLEMENTAL REPORT AND RECOMMENDATION
Richard Waite, an inmate who is proceeding pro se and in
forma pauperis, filed suit in which he alleged that Assistant
County Attorney Gasaway and members of the Hinsdale Police
Department (“HPD”) violated his constitutional rights in the
execution of a search warrant at his mother’s home. 	Following
preliminary review pursuant to 28 U.S.C. § 1915A(a) and LR
4.3(d)(1), the undersigned magistrate judge issued a report and
recommendation to dismiss Mr. Waite’s Claim 1(a)-(b) without
prejudice as precluded under Heck v. Humphrey, 512 U.S. 477,
486-87 (1994), to dismiss Claims 2(a)-(d) as time barred, and to
decline to exercise supplemental jurisdiction over state law
claims. 	Mr. Waite filed an objection to the report and
recommendation in which he primarily disputed the recommendation
to dismiss Claims 2(a)-(d) as time barred.1
1 Mr. Waite does not dispute dismissal of Claims 1(a)-(b),
although he included some discussion of those claims in the
objection. 	Mr. Waite also stated that a defendant’s first name
was incorrect in the report and recommendation, that he did not
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In response to Mr. Waite’s objection, the court adopted the
report and recommendation to dismiss Claims 1(a)-(b) without
prejudice. 	Because Mr. Waite made new allegations in his
objection, pertaining to when he knew his property had been
seized, the court construed the objection as a request to amend
the complaint with new allegations to support Claims 2(a)-(d).
The court took the report and recommendation under advisement
and referred the matter back to the undersigned magistrate judge
for preliminary review of Claims 2(a)-(d), as amended.
Preliminary Review Standard
The court conducts a preliminary review of prisoner
complaints seeking relief from government employees or entities.
28 U.S.C. § 1915A(a); LR 4.3(d)(1). 	For purposes of preliminary
review, pro se complaints are construed liberally. 	See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). 	Claims may be
dismissed, sua sponte, 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 § 1915A(b)(1); LR 4.3(d)(1)(A). 	In considering
whether the complaint states a claim, the court construes
reasonable inferences in the plaintiff’s favor to determine
make a claim under the Sixth Amendment, and that he was not
present during the initial search of his mother’s home.
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whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief’” upon which
relief can be granted. 	Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation omitted).
Background
The operative complaint in this case consists of the
original complaint, document no. 1, and the objection, document
no. 6. 	Those filings were considered together for purposes of
preliminary review.
As alleged in his original complaint, a search warrant was
issued for Mr. Waite’s mother’s home, Waite’s former residence,
at 12 Church Street in Hinsdale, New Hampshire, in September of
2014. 	Three searches were conducted in September; the first
occurred on September 4, 2014.
Mr. Waite alleges that the officers who conducted the
searches took items not listed on the search warrant, not
related to any crime, and not subject to any exception to the
warrant requirement.2 	He also alleges that the officers failed
to make a “clear and complete inventory of the seized items.”
2 Mr. Waite was later convicted on charges of aggravated
felonious sexual assault, attempted aggravated felonious sexual
assault, possession of child pornography, and misdemeanor sexual
assault. 	State v. Waite, 2018 WL 1190684 (N.H. Mar. 8, 2018).
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Doc. 1, at *3. 	Specifically, Mr. Waite alleges that the
officers took:
items of prepper/dried, stored, “MRE” food, including some
30+ MRE’s and 36+ pails with stored food of 4 weeks each
(value $175.00 per). 	This food—MRE’s was in a metal
container under the bed, the pails/totes of food was in the
closet and in the basement. 	The HPD also took several
firearms not listed in their inventory that where [sic] in
the closet. 	These include 1- other PPS-43C (I had 2)
1 other M-57 tokarave pistol (I had 3), 2-CZ-52 pistols, 1
Egyptian AK-semi-auto, 1 Ballard sporting rifle 1860, 1-
percusion muzzle loading rifle 50 cal, 1-Mauser 72/84 rifle
. . . 1-Mossberg tactical turkey shot gun 12 GA
.. . . 	They also took many “spam” cans of ammo not listed.
May 17, 2021 Compl. (Doc. No. 1), at *3-*4 (ellipses in
original).
As noted in the prior report and recommendation, Mr. Waite
filed forty-eight pages of documents with his complaint that
include excerpts from a transcript of his mother’s testimony
during his criminal trial, excerpts from a transcript of the HPD
chief’s testimony, the search warrant, and other documents. 	The
documents filed show that Mr. Waite’s mother, Donna Vollert,
filed a written complaint on May 26, 2015, against the HPD,
stating that Mr. Waite was questioning the items that had been
taken by the police during the searches. 	She also said that she
had not received a copy of the search warrant or a list of the
items taken. 	During her trial testimony, reference was made to
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a civil lawsuit about the items taken during the searches.3 	Mr.
Waite reported the alleged theft of his property to the New
Hampshire State Police and others.
Mr. Waite’s complaint was construed to allege the following
claims that have not been dismissed:
2. 	HPD Chief Todd A. Faulkner, HPD Lt. David Eldridge, in
their individual and official capacities, and three “John
Doe” police officers (whose names are not known) in their
official capacities, executed a search warrant at Mr.
Waite’s home during three separate searches in September
2014, in violation of Mr. Waite’s Fourth Amendment right
not to be subject to a warrantless search of his home, in
that the defendants:
a. seized items from his home which were not
authorized by the warrant, or any exception to the
warrant requirement, and which were not pertinent to the
crimes with which Mr. Waite was charged or any other crime;
b. failed to make a clear and complete inventory list
of the items seized from Mr. Waite’s home;
c. failed to provide a copy of the search warrant with
the home owner, Donna Vollert; and
d. failed to act on Mr. Waite’s and Ms. Vollert’s
complaints concerning the improperly seized items.
Doc. no. 5, at *6. 	In the first report and recommendation, it
was recommended that Claims 2(a)-(d) be dismissed as time barred
because Mr. Waite knew, at least by November 2, 2014, that his
property had been seized during the searches of his mother’s
home and that he disputed the legality of the seizures.
3 Mr. Waite states in his objection that the lawsuit did not
proceed because of issues with service.
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In his objection, Mr. Waite asserts that he did not learn
that the items he contends were illegally seized from his
mother’s basement were missing until July or August of 2019 when
he told his mother to be sure to take them when she moved.4 	Mr.
Waite states that he is challenging the defendants’ seizure of a
pallet of food and ammunition crates that were in his mother’s
basement as an illegal seizure under the Fourth Amendment. 	Doc.
6, at *2. 	He describes the seized items as “firearms, spam cans
of ammo and/or the food pails in the basement.” 	Id., at *3.
Discussion
As stated in his objection, Mr. Waite now limits his Fourth
Amendment claim to items he alleges were taken during the
searches that were not listed on the inventories. 	He contends
that the officers took food and ammunition from his mother’s
basement that were not listed on the inventories. 	He
4 Mr. Waite stated that contrary to a statement in the prior
report and recommendation, he was not present during the initial
search of his mother’s home on September 4, 2014. 	According to
the record that Mr. Waite provided, however, his mother
testified that he was present with her during the search on
September 4. 	Doc. 1-1, at *4. 	In addition, it appears from the
transcript of the deposition of the HPD chief that Mr. Waite was
arrested at the time of the search. 	Doc. 1-1, *2-*3. 	While Mr.
Waite’s presence during the search supports a conclusion that he
knew what items were seized, it is not dispositive in the
context of the record that Mr. Waite has provided.
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acknowledges that his claim is time barred as to any seized
items that were listed on the inventories.
A. 	Statute of Limitations
Section 1983 does not include a statute of limitations, and
claims brought pursuant to § 1983 are governed by the statute
applicable to personal injury actions in the forum state. 	Owens
v. Okure, 488 U.S. 235, 236 (1989). 	Under New Hampshire law, a
personal injury action must be brought within three years. 	RSA
508:4. 	A cause of action under § 1983 accrues, for purposes of
the limitations period, “‘when the plaintiff knows, or has
reason to know of the injury on which the action is based.’”
Alamo-Hornedo v. Puig, 745 F.3d 578, 581 (1st Cir. 2014)
(quoting Moran Vega v. Cruz Burgos, 537 F.3d 14, 20 (1st Cir.
2008)).
A claim that property was seized in violation of the Fourth
Amendment accrues when the plaintiff knew or had reason to know
that the defendants’ seizure was wrongful. 	Schomaker v. United
States, 334 F. App’x 336, 338 (1st Cir. 2009). 	If the plaintiff
knew of the challenged search and seizure of property and of his
injury at that time, a Fourth Amendment claim accrues at the
time of the seizure, not when the subsequent consequences
“became most painful.” 	Richer v. Parmelee, 388 F. Supp. 3d 97,
105 (D.R.I. 2019); see also Kripp v. Luton, 466 F.3d 1171, 1175
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(10th Cir. 2006); Moore v. Moore, 2019 WL 6683171, at *4 (N.D.
Ohio Dec. 6, 2019).
B. 	Application
Mr. Waite argues that he did not know that his property had
been taken from his mother’s basement until he asked her to take
his property when she moved in 2019. 	He contends that the
property in the basement was not listed on the search
inventories so he had no reason to know that it had been seized
at the time of the searches in September of 2014 or after that
time. 	The record Mr. Waite provides shows, however, that he was
well aware that many items had been taken during the search,
that some items were described generally as crates or boxes, and
that some items were not included on the inventories.
Mr. Waite knew that the search occurred on September 4,
2014. 	The inventories or property lists of items seized in the
search include multiple firearms, “77 7 CRATES, 1 BOX ASSORTED
AMMUNITION” and “77 6 MAGAZINES 2 PISTOL 4 RIFLE.” 	Doc. 1-1, at
*36. 	In a letter to New Hampshire State Troopers, dated June
18, 2015, Waite states that he is accusing the Hinsdale police
of being thieves and crooks for taking his property, including
“8 crates [my mom says all [?] in reality] 3 stocks – not
firearms, and 6 magazines – not installed into firearms, and
hense not allowed.” 	Doc. 1-1, at *38. 	Mr. Waite further states
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that he was seeking the return of metal and wooden crates. 	As
such, Mr. Waite demonstrates that he knew then that items had
been taken or were missing from his mother’s home that were
either not listed or not clearly listed on the inventories.
In addition, Mr. Waite was on notice from the time of the
initial search and seizure of items from his mother’s home on
September 4, 2014, that many items had been taken, including
items that he now alleges were in the basement. 	For example, at
Waite’s request, his mother went to the HPD in May of 2015 to
ask about food, “MRE’s (Meals Ready to Eat)” that had been
taken. 	Her query shows that Mr. Waite knew food had been taken
or was missing from his mother’s home.
While Mr. Waite alleges that he did know that the food and
ammunition in the basement had been taken until 2019, Mr. Waite
provides no plausible reason for his ignorance. 	He says he
could not ask his mother to look in the basement for his
property after the searches because of her age and knee issues.
His concern did not extend, however, to his request that she
move his property with her to Ohio.
In the circumstances Waite alleges, he knew at least by
June of 2015 that property had been seized during the search
that he believed was taken illegally and that was not listed on
the inventories. 	To the extent Mr. Waite may have discovered
later that more items had been taken than he knew initially, his
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Fourth Amendment claims accrued when he knew that property had
been taken that he believed was taken illegally. 	While the
scope of the alleged harm may not have been apparent until
later, the alleged injury occurred at the time of the search and
seizure of the property. 	Waite knew of the seizures and
complained about the items taken at least by June of 2015.
Therefore, his claims accrued in 2015, and Claims 2(a)-(d) are
time barred.
Conclusion
For the foregoing reasons, the district court should
dismiss Claims 2(a)-(d) as time barred and decline to exercise
supplemental jurisdiction over any state claims Mr. Waite may
have intended to allege, without prejudice to his ability to
raise those claims in state court.
Any objections to this Supplemental 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 any objection 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). 	Only those issues raised in the objections(s) to this
Supplemental Report and Recommendation “‘are subject to review
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in the district court.’” 	Id. 	Additionally, any issues “‘not
preserved by such objection are precluded on appeal.’” 	Id.
(citations omitted).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
January 7, 2022
cc: 	Richard Waite, pro se.
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