Li v. Warren Police et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Changgang Li
v. 	Civil No. 18-cv-880-PB
Warren Police Department
REPORT AND RECOMMENDATION
Plaintiff Changgang Li filed a complaint (Doc. No. 1) in
this matter against the Warren, New Hampshire Police Department
(“WPD”), and two defendants located in Massachusetts, the
Belmont Police Department (“BPD”) and the Cambridge District
Court (“CDC”). 	This court previously severed the claims against
the BPD and the CDC from the claims against the WPD, opened a
new case containing the claims against the Massachusetts
defendants, and transferred the newly opened case to the
District of Massachusetts. 	See Jan. 9, 2019 Order (Doc. No. 9).
The court now undertakes a further preliminarily review of the
complaint (Doc. No. 1), construing the factual assertions in
Li’s motions (Doc. Nos. 3, 5, 7, 8), and in his objection (Doc.
No. 6) to the November 20, 2018 Report and Recommendation
(“R&R”) as part of the complaint. 	See 28 U.S.C. § 1915(e)(2);
LR 4.3(d)(2).
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Preliminary Review Standard
The court may dismiss claims asserted in a complaint filed
in forma pauperis if the court lacks jurisdiction, a defendant
is immune from the relief sought, the complaint fails to state a
claim, or the action is frivolous or malicious. 	See id. 	In
determining whether a pro se complaint states a claim, the court
must construe the complaint liberally. 	See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam). 	To survive preliminary
review, the complaint must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief.’” 	See 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
Although Li’s filings are convoluted and lack a clear
narrative, the court understands Li to have asserted the
following facts in this matter. 	Li came to the United States
from China in June 2017 with his now-estranged wife, Zhang
Weiping, and their two children. 	Li purchased a home in Warren,
New Hampshire where he lived with his children after arriving in
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the United States. 	It is not clear whether Zhang Weiping ever
lived in Warren with Li and the children. 	Zhang Weiping now
lives in Massachusetts with the children, and Li lives in
Warren, and has visitation with the children pursuant to
proceedings in the CDC.
Li asserts that WPD officers entered his home and arrested
him, and then jailed him subsequent to arrest. 	It appears that
Li’s arrest may have been, at least in part, due to a BPD
warrant. 	After the WPD arrested Li, the BPD picked him up and
brought him to Massachusetts, apparently for a criminal domestic
violence case involving Zhang Weipeng. 	Li does not state
whether the WPD independently charged him with any offense. 	Li
further asserts that someone at the WPD seized his wallet at the
time of his arrest, and would not give him access to it while he
was jailed, which prevented Li from contacting anyone to tell
them he had been arrested and incarcerated.
Claims
In a January 7, 2019 Order (Doc. No. 9), the court found
that Li had attempted to assert the following two claims against
the WPD:
1. 	The WPD violated Li’s Fourth Amendment rights by:
a. 	illegally arresting him in his home, and
b. 	illegally searching and seizing his wallet.
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2. 	The WPD, by illegally arresting and incarcerating Li,
interfered with Li’s First and Fourteenth Amendment rights
to familial association and to parent his children.
In his objection (Doc. No. 6) to the November 2018 R&R, Li
stated facts which, liberally construed, assert a third claim
against the WPD, as follows:
3. 	The WPD violated Li’s Fourteenth Amendment right to
equal protection of the law, in that the WPD discriminated
against him by failing to accept his statement, and by
failing to give him a “clear reply.”
Discussion
I. 	Claims Against the WPD
A. 	Individual Capacity Claims Against WPD Officers
Li’s claims arise under 42 U.S.C. § 1983, which “renders
persons acting under color of state law liable for
constitutional and federal-law violations.” 	Elena v. Mun’y of
San Juan, 677 F.3d 1, 6 (1st Cir. 2012). 	Li has sued only the
WPD, however, and has not identified the individual WPD officers
who committed the acts underlying his claims. 	A municipal
police department, such as the WPD, is not a “person” within the
meaning of § 1983. 	See Vick v. Massachusetts, No. 17-11531-PBS,
2017 U.S. Dist. LEXIS 149767, at *4-*5, 2017 WL 4102454, at *2
(D. Mass. Sept. 15, 2017). 	In the event Li intends to sue one
or more individual wpD officers in this action, in their
individual capacities, in an Order issued simultaneously with
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this Report and Recommendation (“R&R”), the court grants Li the
opportunity to amend his complaint to do so. 	In amending his
complaint, Li must identify individual WPD officers or employees
who Li intends to sue, and to describe, with specificity, what
each identified individual defendant officer did or failed to do
that violated Li’s constitutional rights.
B. 	Supervisory and Municipal Liability
Li may be attempting to sue the WPD as a supervisory
authority responsible for the challenged actions of WPD
officers. 	“A supervisor may be held liable for the
constitutional violations committed by his subordinates where
‘an affirmative link between the behavior of a subordinate and
the action or inaction of his supervisor exists such that the
supervisor’s conduct led inexorably to the constitutional
violation.’” 	Morales v. Chadbourne, 793 F.3d 208, 221 (1st Cir.
2015) (citations omitted).
Li may also be attempting to bring suit against the WPD
under a theory of municipal liability. 	Such a claim is, in
effect, a claim against the Town of Warren. 	A county or other
local government, however, may not be held liable under 42
U.S.C. § 1983 for violating a plaintiff’s federal constitutional
rights simply because an employee of the municipality committed
such a violation. 	See Iqbal, 556 U.S. at 677. 	A plaintiff who
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brings a § 1983 action against a municipality “must identify a
municipal policy or custom that caused the plaintiff’s injury.”
Haley v. City of Boston, 657 F.3d 39, 51 (1st Cir. 2011)
(citations and internal quotation marks omitted). 	“[W]hen
execution of a [local] government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy, inflicts the
injury,” then “the government as an entity” may be held
responsible under § 1983. 	Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 694 (1978).
To date, Li has not stated a claim against the WPD upon
which relief might be granted under a theory of either
supervisory liability or municipal liability. 	As set forth in
the Order issued simultaneously with this R&R, Li is granted
leave to amend his complaint to state specific facts which show
that the WPD may be sued under a theory of supervisory or
municipal liability.
C. 	Unsupported Legal Conclusions
Li alleges generally that the WPD deprived him of “all of
[his] rights,” Doc. No. 1, at 2, insulted and deceived him,
“killed” him twice, id., abused its power, and unfairly enforced
the law. 	These allegations are unsupported legal conclusions,
and as such are insufficient to state a claim, or even to
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suggest that Li could amend his complaint to state such claims.
Accordingly, the district judge should dismiss those claims from
this action.
II. 	Domestic Violence Act
Li challenges the constitutionality of a law he identifies
in his complaint as the “American Domestic Violence Act.” 	Li
claims the “American Domestic Violence Act” is damaging to
women, and to the fabric of American society, as it furthers the
notion that women are weak and in need of protection rather than
individuals who are equal to men, and attempts to erase the
differences between men and women that are “laws of nature.”
Id. at 4. 	Li further asserts that under the American Domestic
Violence Act, “it is too easy . . . for one person to frame
another.” 	Id.
As an initial matter, it is not clear what statute or law
Li is challenging. 	The court can find no federal,
Massachusetts, or New Hampshire law called the “American
Domestic Violence Act.”
Additionally, even if Li can identify a specific law to
which he objects, to have standing to challenge the
constitutionality of a law, Li “must have ‘(1) suffered an
injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed
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by a favorable judicial decision.’” 	Va. H.D. v. Bethune-Hill,
139 S. Ct. 1945, 1956 (2019) (citation omitted). 	Li’s
assertions are insufficient to demonstrate that he suffered an
injury traceable to the conduct of the WPD, which would be
redressed if the court were to find the “American Domestic
Violence Act” to be unconstitutional.
Accordingly, at this time, Li has not stated a cognizable
constitutional challenge to the “American Domestic Violence Act”
or any other law. 	In an abundance of caution as Li is
representing himself in this case, the court, in the Order
issued simultaneously with this R&R, grants Li the opportunity
to amend his complaint to identify the statute or law he seeks
to challenge, and to demonstrate that he has standing to do so
in this case.
III. Requested Ban on Feminists/Feminism
Li asks the court to “ban the feminist,” and equates
feminism with terrorism, generally for the same reasons that he
objects to the law he identifies as the “American Domestic
Violence Act.” 	There is no basis in law for granting this
request, and the district judge should deny Li’s requested ban.
IV. 	Claims Asserted on Behalf of Others
In his filings, Li attempts to assert claims on behalf of
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his children and “local residents.” 	Li, as a pro se party who
is not an attorney, cannot assert claims on behalf of anyone
other than himself in this court. 	See 28 U.S.C. § 1654; LR
83.2(d). 	Accordingly, the district judge should dismiss Li’s
claims so asserted.
Conclusion
For the foregoing reasons, the district judge should:
dismiss the claims set forth in section I(C) of this R&R, deny
Li’s request to ban feminism, and dismiss the claims Li asserted
on behalf of anyone other than himself. 	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
September 10, 2019
cc: 	Changgang Li, pro se
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