United States District Court, D. New Hampshire
Michael P. Courtney, Esq. Russell F. Hilliard, Esq., Michael
Kane, pro se
McCafferty, United States District Judge
Kane, proceeding pro se, brought suit against the Town of New
Ipswich, New Hampshire, and present and former town
officials. In his original complaint (doc. no. 1), Kane
challenged defendants' efforts to collect property taxes
from him, asserting that his property is a “household
utensil” that is exempt from property tax pursuant to
RSA 80:9. The court granted defendants' motion to dismiss
Kane's original complaint due to the jurisdictional bar
of the Tax Injunction Act (“TIA”), 28 U.S.C.
§ 1341. The court, however, allowed Kane an opportunity
to file an amended complaint “to state claims arising
out of the events alleged in this case that do not challenge
the validity of the New Ipswich tax assessment and collection
process, if any such claims exist.” Doc. no. 50 at 10.
filed an amended complaint (doc. no. 51). Defendants move to
dismiss (doc. no. 54).
their motion to dismiss the original complaint, defendants
move to dismiss the amended complaint both for failure to
state a claim, under Federal Rule of Civil Procedure
12(b)(6), and for lack of subject matter jurisdiction, under
Federal Rule of Civil Procedure 12(b)(1). For purposes of
this motion, where extrinsic evidence is not an issue, the
standard of review under both rules is the same. Cf. U.S.
ex rel. Winkelman v. CVS Caremark Corp., 827 F.3d 201,
207 (1st Cir. 2016).
stated in the court's prior order, when considering
motions under Rules 12(b)(1) and 12(b)(6), the court accepts
as true the properly pleaded facts and takes all reasonable
inferences from those facts that support the plaintiff's
claims. Mulero-Carrillo v. Roman-Hernandez, 790 F.3d
99, 104 (1st Cir. 2015); New England Patriots Fans v.
Nat'l Football League, No. 16-10659-FDS, 2016 WL
3248207, at *2 (D. Mass. June 10, 2016). Based on the
properly pleaded facts, the court determines whether the
plaintiff has stated “a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is plausible
if the facts as pleaded, taken in the context of the
complaint and in light of “judicial experience and
common sense, ” allow the court to draw “the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009).
amended complaint, which is 57 pages long, Kane provides a
section of factual allegations, followed by 15 counts. Kane
alleges that he has challenged town officials' authority
to collect property taxes from him for many years and has
notified town officials that their tax collection activities
violate his rights under the federal constitution. He
believes that his tax collection protests have made
defendants dislike him which has, in turn, caused him
general, Kane's claims arise from his dissatisfaction
with defendants' responses to his tax collection
protests, which he claims have been cruel, dismissive, and
insufficient. Specifically, Kane alleges that each challenge
to defendants' authority to collect his taxes “was
either ignored and not responded to at all, or responded to
with vexatious and insulting replies implying nonsense such
as the ‘Right to Know' law . . . or with feigning
of ignorance or stupidity as to comprehending what I was
asking.” Doc. no. 51 at ¶ 36. Kane also alleges a
claim against a particular official, Jessica Olson, arising
out of his interaction with her when he paid a tax bill.
Id. at ¶¶ 119-143.
brings claims pursuant to 42 U.S.C. §§ 1983, 1985,
and 1986, primarily alleging that defendants violated his
First and Fourteenth Amendment rights in the way they handled
his tax protests. He also alleges violations of his Eighth
and Thirteenth Amendment rights. Kane asks that the
individual defendants be removed from office, seeks a million
dollars in damages from each of the individual defendants,
seeks an additional 10 million dollars from Olson, and seeks
40 million dollars from the town. He also asks that the court
order criminal charges to be brought against the individual
defendants for violating his rights.
explained in the court's order granting defendants'
motion to dismiss the original complaint, see doc. no. 50,
Kane was granted leave to file an amended complaint raising
claims that do not challenge the validity of the New Ipswich
tax assessment and collection process, if any such claims
exist. Defendants move to dismiss the amended complaint,
arguing that, like Kane's original complaint, the amended
complaint again challenges the town's tax assessment and
collection process so that the claims are barred by the TIA
and fail to state any constitutional claims. In response,
Kane contends that he carefully complied with the court's
requirement that his new claims not challenge the validity of
the town's tax assessment and collection process.
does not appear to directly challenge the town's tax
assessment and collection process in his amended complaint.
He does, however, seek the immediate removal of the
individual defendants from public office and requests that
criminal charges be brought against the individual
defendants. See doc. no. 51 at ¶ 1. In that way, Kane
seeks to interfere with the town's ability to collect
taxes, which necessarily deprives this court of jurisdiction
over Kane's claims under the TIA. See, e.g., Burns v.
Conley,526 F.Supp.2d 235, 240 (D.R.I. 2007) (noting
that the Supreme Court's holding in Hib ...