1:18-cv-00892•Bureau v. Dillon et al
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1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE Steven P. Bureau v. Case No. 18-cv-892-PB Theodore Dillon, Howard Clark Preston, Michael Lambert, Ryan Milligan, and Amy Cammarota REPORT AND RECOMMENDATION Before the court is pro se plaintiff Steven P. Bureau’s amended complaint filed pursuant to 42 U.S.C. § 1983, alleging defendants have violated his constitutional rights. See § 1983 Compl. (Doc. No. 1), as amended by (Doc. Nos. 7-1, 10). The amended complaint is before this magistrate judge for preliminary review, pursuant to 28 U.S.C. § 1915(e)(2) and LR 4.3(d)(2). Background I. Original Complaint Bureau filed his original complaint in this court on September 24, 2018. In it, he alleged that on multiple unspecified dates, unidentified officers of the Merrimack Police Department (“MPD”): unlawfully arrested him; tried to keep his incarceration a secret, causing him to miss two arraignment Case 1:18-cv-00892-PB Document 11 Filed 01/29/20 Page 1 of 16
2 dates; and unlawfully removed him from his home after his landlady assaulted him. On preliminary review, the court found that, liberally construed, the complaint appeared to assert Fourth Amendment claims of false arrest, false imprisonment, and malicious prosecution under 42 U.S.C. § 1983, but that Bureau had failed to allege sufficient facts to state such claims. See Sept. 6, 2019 Order (Doc. No. 9) (approving June 6, 2019 Report and Recommendation (“R&R”) (Doc. No. 4)). Rather than dismiss the complaint, the court provided Bureau the opportunity to amend it, see id., and issued an order setting out the information Bureau was required to provide to adequately raise claims of false arrest, false imprisonment, and malicious prosecution, see Doc. No. 5. II. First Amended Complaint Bureau filed an amended complaint on August 5, 2019, alleging that MPD officers denied him protection from domestic violence on multiple occasions and refused to intervene on his behalf in domestic violence-related matters involving his daughter and involving his landlady, Amy Cammarota. See Aug. 5, 2019 Am. Compl. (Doc. No. 7-1) at 1. Next, Bureau lists, with varying detail, arrests, detentions, and other incidents involving MPD officers dating back to April 27, 2015. (Doc. No. Case 1:18-cv-00892-PB Document 11 Filed 01/29/20 Page 2 of 16
3 7-1). He refers to some of these as “related” but does not indicate how they are related, except that they involve domestic violence. Among the incidents he cites are those that occurred on September 24, 2015. III. Second Amended Complaint Bureau filed a second amended complaint (Doc. No. 10) on September 19, 2019.1 In it, he alleges that on September 24, 2015, his landlady, Amy Cammarota, assaulted him and denied him the use of a phone to call 911. He alleges further that as he was attempting to leave the property, defendant MPD Officers Theodore Dillon, Howard Clark Preston, Michael Lambert, and Ryan Milligan, drove onto the property and blocked his truck from leaving. Bureau asserts that he told the defendants that Cammarota had assaulted him and refused to let him use the phone to report the assault. According to Bureau, defendants Lambert 1The court does not treat Doc. No. 10 as an amended complaint that supersedes Doc. No. 7-1, Bureau’s first amended complaint. Cf. Connectu LLC v. Zuckerberg, 522 F.3d 82, 91 (1st Cir. 2008) (stating the general rule that an amended complaint replaces an original complaint). When he filed Doc. No. 7-1, Bureau asked for an extension of time to complete his amended complaint, see Aug. 5, 2019 Mot. for Ext. of Time (Doc. No. 7) at 1, indicating he considered Doc. No. 7-1 part of his amended complaint and did not intend for Doc. No. 10 to supersede it but to complete his amended complaint. There is no reason to believe Bureau, a layman, understood that he was to file only one complete amended complaint, cf. Fed. R. Civ. P. 15(a) (permitting a party to amend its complaint “once as a matter of course at any time before a responsive pleading is served”). Case 1:18-cv-00892-PB Document 11 Filed 01/29/20 Page 3 of 16
4 and Preston detained Bureau in the backyard, while defendants Dillon and Milligan spoke with Cammarota in the house. Bureau asserts that Dillon provided Cammarota eviction paperwork which she completed, and which Dillon signed as a witness. Dillon then gave the completed eviction papers to Bureau. Bureau alleges the MPD defendants then forced him to leave the property. On September 29, 2015, according to Bureau, he was pulled over by an MPD Officer. He does not state who pulled him over or why he was pulled over. He does allege, however, that on the same day, defendant Dillon threatened to arrest him if he went back to the house without a court order allowing him to do so. Bureau asserts that he then obtained a Landlord/Tenant Protective Order and a Domestic Violence Protective Order from the Merrimack District Court. He alleges Cammarota changed the locks on the home and that the MPD refused to enforce the Landlord/Tenant Protective Order. Bureau alleges also that defendants Dillon and Cammarota are friends and that they conspired to have him evicted from the home. He asserts that he has copies of emails between the two that support his allegation. Bureau alleges Cammarota never filed eviction paperwork with the court. He asserts that he has a lease with Cammarota and that the home at issue is still his legal address. He Case 1:18-cv-00892-PB Document 11 Filed 01/29/20 Page 4 of 16
5 contends that he has never been legally evicted and that he has not voluntarily moved or vacated the home. Nevertheless, Bureau alleges, he has been denied access to the home and his personal belongings since September 24, 2015. Preliminary Review Standard The court screens complaints filed by plaintiffs proceeding in forma pauperis to determine, among other things, whether the plaintiff has asserted any claim upon which relief might be granted or seeks monetary relief from any defendant who is immune from the relief sought. See 28 U.S.C. § 1915(e)(2); LR 4.3(d)(2). To determine if the pleading states a claim upon which relief can be granted, the court first disregards any parts of the pleading that amount to legal conclusions; next, takes as true all well-pleaded facts in the plaintiff’s complaint, the inferences reasonably drawn from those facts, implications from documents incorporated into the complaint, and facts subject to judicial notice; and finally, construes those facts in a light most favorable to the plaintiff’s theory of liability. See Breiding v. Eversource Energy, 939 F.3d 47, 49 (1st Cir. 2019); Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013). In determining whether a pro se pleading states a claim upon which relief can be granted, the court Case 1:18-cv-00892-PB Document 11 Filed 01/29/20 Page 5 of 16
6 construes the pleading liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Claims Construed liberally, Bureau raises the following claims in the amended complaint: 1. Bureau’s Fourth Amendment rights not to be subject to false arrest, false imprisonment, and/or malicious prosecution were violated when unidentified MPD officers arrested and/or imprisoned him on April 27, 2015; June 4, 2015; June 8, 2015; Sept. 29, 2015; Dec. 4, 2015; Jan. 3, 2016; Feb. 23, 2016; May 5, 2016; May 12, 2016; Sept. 20, 2016; Dec. 12, 2016; Feb. 9, 2017; and Nov. 7, 2017, for violating one or more domestic violence protection orders or for other unspecified reasons, and the charges against him were subsequently dismissed, or he was subsequently acquitted of those charges at trial. See Aug. 5, 2019 Am. Compl. (Doc. No. 7-1) at 1-2, 4-9. 2 Bureau’s Fourth Amendment right not to be subject to false arrest/false imprisonment were violated on September 24, 2015 by defendants Theodore Dillon, Howard Clark Preston, Michael Lambert, and Ryan Milligan, when they unlawfully detained him in the yard of his home and did not release him from that detention until Dillon handed him eviction paperwork. See Sept. 19, 2019 Am. Comp. (Doc. No. 10) at 1. 3. Bureau’s Fourteenth Amendment right to procedural due process was violated on September 24, 2015, by the MPD defendants and Cammarota when they evicted him from his home without constitutionally adequate process. See id. 4. Defendant Cammarota violated Bureau’s right to “quiet enjoyment of his tenancy” under N.H. Rev. Stat. Ann. § 540- A:2 and/or N.H. Rev. Stat. Ann. § 540-A:3 when she changed the locks and denied him access to the home which he leased from her. See id. at 2. Case 1:18-cv-00892-PB Document 11 Filed 01/29/20 Page 6 of 16
7 5. Defendants Dillon and Cammarota violated 42 U.S.C. § 1985(3) of the Civil Rights Act by conspiring to violate Bureau’s rights. See id. 6. Bureau’s Fourteenth Amendment right to substantive due process was violated by unidentified MPD officers who refused to enforce landlord/tenant and domestic violence protective orders issued by the court on September 29, 2015. See id. 7. Defendant Cammarota has deprived Bureau of access to his personal property inside the home in contravention of state law against conversion of property. See id. 8. Bureau’s Fourteenth Amendment right to equal protection under the law was violated on October 7, 2015; Nov. 7, 2015; and Nov. 12, 2015, when unidentified MPD officers denied him a “civil standby”; denied him protection from unspecified domestic violence and refused to “take action” and intervene in unspecified situations. See Aug. 5, 2019 Am. Compl. (Doc. No. 7-1) at 3. 9. Bureau’s truck was damaged on October 27, 2015, when MPD officer Dean Killkelly ordered that it be towed from Bureau’s friend’s yard. See id. at 10. 10. Bureau’s Fourth Amendment rights not to be subject to false arrest, false imprisonment, and malicious prosecution were violated on Dec. 9, 2015, when Ryan Milligan arrested him for stalking and breach of bail; Bureau was detained until Dec. 20, 2015, and the charges against him subsequently were dismissed. See id. at 4-5. 11. Bureau’s Fourteenth Amendment right to due process was violated by unidentified MPD officers who refused to take unspecified action after Bureau’s father filed a report on December 19, 2015, that someone broke the windows of Bureau’s van while it was parked at Bureau’s rental property. See id. at 5. 12. On March 9, 2016, MPD officer Christopher Dowling either denied Bureau a “civil standby” or denied him the opportunity to file a report about a stolen van, milled lumber, industrial compressor, boat, trailer, and other items. The exact nature of the claim against Dowling is not clear from the pleadings. See id. at 9. Case 1:18-cv-00892-PB Document 11 Filed 01/29/20 Page 7 of 16
8 13. On August 13, 2016, MPD officer Daniel Lindhom refused to intervene when defendant Cammarota and her boyfriend removed Bureau’s personal possessions from the house and took them to the garbage dump. See id. 14. Bureau’s Fourth Amendment rights not to be subject to false arrest, false imprisonment, and malicious prosecution were violated on December 1, 2016, when defendant Sean McGuire arrested him for violating a domestic violence protective order and the charge subsequently was dismissed. See id. at 7. 15. Bureau’s Fourteenth Amendment right to procedural due process was violated on Jan. 1, 2017 when unnamed MPD officers sent false information to the New Hampshire State Police that Bureau was “Adjudicated or Committed Mental Defective,” and the State Police added that information to Bureau’s NICS record. See id. at 8. 16. Bureau’s Fourteenth Amendment right to procedural due process was violated on or about February 3, 2017, when MPD officer James Sullivan requested that the New Hampshire Department of Motor Vehicles (“DMV”) suspend Bureau’s license, falsely claiming that Bureau was incompetent to stand trial. See id. Discussion I. Claims 1, 6, 8, 11, and 15 “It is well-settled that only those individuals who participated in the conduct that deprived the plaintiff of his rights can be held liable” under § 1983. Velez–Rivera v. Agosto–Alicea, 437 F.3d 145, 146 (1st Cir.2006) (quotation marks omitted). In its Order providing him the opportunity to file an amended complaint, the court specifically instructed Bureau to identify, by name, each defendant who participated in the conduct forming the basis for each claim raised in the amended Case 1:18-cv-00892-PB Document 11 Filed 01/29/20 Page 8 of 16
9 complaint. See June 6, 2019 Order (Doc. No. 5) at 2. Bureau does not assert that one or more of the named defendants participated in the conduct alleged in Claims 1, 6, 8, 11, or 15. Accordingly, the district judge should dismiss those claims. II. Claims 9, 12-14, and 16 In the cover sheet of his original complaint, Bureau named “Theodore Dillon, et al.” as the defendant in this action but otherwise did not name any other individual as a defendant in either the caption or body of the complaint. Nevertheless, in addition to Dillon, the Clerk of Court docketed Howard Clark Preston, Michael Lambert, and Ryan Milligan as defendants, as Bureau filed summonses for those individuals with the complaint. In its Order providing him the opportunity to file an amended complaint, the court notified Bureau that he could amend his complaint to add defendants whom he believed participated in a constitutional violation alleged in the amended complaint, provided he identified those individuals by name. See Sept. 6, 2019 Order (Doc. No. 9) (approving June 6, 2019 R&R (Doc. No. 4) at 8). Bureau’s first amended complaint does not include a caption, but he raises claims implicating MPD Officers James Sullivan, Sean McGuire, Christopher Dowling, Daniel Lindhom, and Dean Killkelly, as well as Bureau’s landlady, Amy Cammarota. Case 1:18-cv-00892-PB Document 11 Filed 01/29/20 Page 9 of 16
10 Thus far, only Cammarota has been added as a party to this action.2 Rule 18(a) of the Federal Rules of Civil Procedure provides: “A party asserting a claim . . . may join, as independent or alternative claims, as many claims as it has against an opposing party.” Fed. R. Civ. P. 18(a). “Despite the broad language of Rule 18(a),” however, a “plaintiff may join multiple defendants in a single action only if [the] plaintiff asserts at least one claim to relief against each of them that arises out of the same transaction or occurrence and presents questions of law or fact common to all.” 7 Charles Alan Wright et al., Federal Practice and Procedure § 1655 (3d ed. 2009) (emphasis added). In other words, Rule 18(a) permits multiple claims against a single defendant, but it does not permit the joinder of unrelated claims against different defendants. Under Rule 20(a) of the Federal Rules of Civil Procedure, persons may be joined as defendants in a single action if “there is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and any question of law or fact common to all 2 The Clerk of Court added Amy Cammarota as a defendant when Bureau filed his second amended petition. Case 1:18-cv-00892-PB Document 11 Filed 01/29/20 Page 10 of 16
11 defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). “Thus, multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in different suits.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Bureau may not bring all his claims in a single complaint. Although he claims broadly that MPD officers failed to protect him from domestic violence and failed to intervene on his behalf in domestic violence-related incidents, that characterization does not create the necessary relationship between his claims to allow them to be asserted in a single lawsuit. Bureau has not alleged that all the MPD officers named in the amended complaint participated in the same transaction or series of transactions and that a question of fact or law is common to all of them. Nor is it clear from the amended complaint that the interactions between Bureau and the various officers involved the same domestic violence incident, domestic violence protective order, or same victim/complainant or that all the incidents recounted were related to domestic violence. The only incident that appears in the original complaint and the first and second amended complaints is that which occurred on September 24, 2015, involving defendants Dillon, Case 1:18-cv-00892-PB Document 11 Filed 01/29/20 Page 11 of 16
12 Preston, Lambert, Milligan, and Cammarota. Those defendants should remain parties to this action. A. Claims 9, 12, 14, and 16 The district court should dismiss Claims 9, 12, 14, and 16 against Dean Killkelly, Christopher Dowling, Sean McGuire, and James Sullivan, respectively, without adding those individuals as defendants to this action. First, those claims do not allege facts from which it can be inferred that they are related to the September 24, 2015 incident. Second, they allege acts by individuals other than Dillon, Preston, Lambert, Milligan, or Cammarota. Finally, Killkelly, Dowling, McGuire, and Sullivan have not yet been recognized by the court as parties to this action. Cf. Fed. R. Civ. P. 21 (“Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.”). The district court should dismiss Claims 9, 12, 14, and 16 without prejudice to Bureau’s ability to raise them in separately filed complaints. B. Claim 13 The district court also should dismiss Claim 13 against MPD officer Daniel Lindhom without adding him as a defendant to this Case 1:18-cv-00892-PB Document 11 Filed 01/29/20 Page 12 of 16
13 action. The claim against Lindholm is related to the September 24, 2015 incident only because the personal property Cammarota allegedly took to the dump belonged to Bureau and, presumably, came from the house from which he was evicted. The incident alleged in Claim 13 occurred on August 13, 2016, however, so it was not part of the same transaction or series of transactions that occurred on or about September 24, 2015. Moreover, the questions of fact and law in Claim 13 (failure to protect property from private actors) is different from the questions of fact and law related to the September 24, 2015 incident (false arrest/imprisonment, due process, etc.). Finally, Bureau does not allege Lindholm was involved in the September 24, 2015 incident. The district court should dismiss Claim 13 without prejudice to Bureau’s ability to raise it in a separately filed complaint. III. Claim 5 Liberally construed, the amended complaint raises a free- standing conspiracy claim against defendants Cammarota and Dillon. Section 1985(3) of the Civil Rights Act “confers a private right of action for injuries occasioned when ‘two or more persons . . . conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and Case 1:18-cv-00892-PB Document 11 Filed 01/29/20 Page 13 of 16
14 immunities under the laws[.]” Burns v. State Police Ass'n of Mass., 230 F.3d 8, 12 n.3 (1st Cir. 2000) (quoting 42 U.S.C. § 1985(3)). “It has long been established that a claim under § 1985(3) requires ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.’” Perez-Sanchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). Here, Bureau does not allege Cammarota and/or Dillon acted out of discriminatory animus based on race or another protected category. Accordingly, the district court should dismiss Claim 5 for failure to state a claim upon which relief may be granted. IV. Claim 7 Liberally construed, it appears the amended Complaint raises a state tort claim of conversion against defendant Cammarota. “Conversion is an intentional exercise of dominion or control over [personal property] which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the [personal property]. Muzzy v. Rockingham Cty. Tr. Co., 309 A.2d 893, 894 (N.H. 1973)) (citations omitted). Bureau alleges that Cammarota changed the locks on the home before he could remove his personal property, and that he has Case 1:18-cv-00892-PB Document 11 Filed 01/29/20 Page 14 of 16
15 not had access to his personal property since September 24, 2015. Bureau also alleges Cammarota and her boyfriend took his personal possessions to the garbage dump. The allegations, taken as true for purposes of initial review, sufficiently state a state claim for conversion against Cammarota to survive initial review. In an Order issued this date, the court has directed service of Bureau’s conversion claim against defendant Cammarota. V. Claims 2-4 and 10 Bureau has alleged sufficient facts for Claims 2, 3, 4, and 10 to survive initial review. Therefore, in an Order issued simultaneously with this R & R, the court has directed service of these claims against defendants Dillon, Preston, Lambert, Milligan, and Cammarota. Conclusion For the foregoing reasons, the district judge should dismiss Claims 1, 5-9, and 11-16 of the amended complaint. 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 Case 1:18-cv-00892-PB Document 11 Filed 01/29/20 Page 15 of 16
16 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 January 29, 2020 cc: Steven P. Bureau, pro se Case 1:18-cv-00892-PB Document 11 Filed 01/29/20 Page 16 of 16
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