United States District Court, D. New Hampshire
Michael Kane, pro se Michael P. Courtney, Esq, . Russell F.
McCafferty, United States District Judge
Kane moves for reconsideration of the court's order
granting defendants' motion to dismiss his amended
complaint (doc. no. 66). In support, Kane contends
that the court's order is “manifestly wrong and in
error” because the Tax Injunction Act
(“TIA”), 28 U.S.C. § 1341, does not
apply to his claims and because he states cognizable
constitutional claims. Defendants object to the motion for
granting of a motion for reconsideration is an extraordinary
remedy which should be used sparingly.” Palmer v.
Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006)
(internal quotation marks and citation omitted). To succeed,
a party moving for reconsideration must show a
“manifest error of law or newly discovered
evidence” or that the court “has patently
misunderstood a party.” Ruiz Rivera v. Pfizer
Pharms., LLC, 521 F.3d 76, 82 (1st Cir. 2008). A motion
for reconsideration cannot be used, however, to advance
arguments that could or should have been raised before
judgment was entered. United States v. Zimny, __
F.3d __, 2017 WL 344976, at *7 (1st Cir. Jan. 24, 2017).
initial complaint (doc. no. 1), Kane alleged that
his property located in New Ipswich, New Hampshire, was a
“household utensil” which was exempt from
property tax pursuant to RSA 80:9. Defendants moved to
dismiss the complaint as barred by the TIA. The court granted
the motion to dismiss but 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 a fifty-seven page amended complaint in which he
brought fifteen civil rights claims pursuant to 42 U.S.C.
§§ 1983, 1985, and 1986
(doc. no. 51). In the amended complaint, Kane
alleges that defendants violated his Fourteenth Amendment
rights and retaliated against him in violation of his First
Amendment right to free speech by failing to adequately
answer his questions about his property taxes and respond to
his protests that the imposition of property taxes was a
violation of his constitutional rights. Kane found that the
responses provided to him and defendants' failure to
provide responses were “extremely insulting,
unprofessional and an intentional slap in the face.”
Doc. no. 51 at ¶ 56.
alleges that the town's attorney's letters to him to
explain the taxes assessed and to explain that he had not
sought information under the “Right to Know” law
were “outrageous” and “served no purpose
other than to outrage me by insisting that the amount [of
taxes] demanded by the Town, which I repeatedly and lengthily
claimed to be fraud, was an ‘amount due.'”
Id. at ¶ 64. Kane alleges that the chairman of
the town's board of selectmen, who is a defendant, hired
the attorney and “directed him to blow me off, rather
than answer my questions, in retaliation for my past
exercises of First Amendment free speech challenging his
authority and implying he had no authority over me.”
Id. at ¶ 76. Kane states that
“[i]rrespective of the validity of the tax that was
collected by the Town of New Ipswich, the conduct of the Town
and its attorney regarding my questions, by responding with
snarky word games and/or failing to respond at all to my
serious concerns, was unjust, discourteous, and shocking to
the conscience” in violation of his Fourteenth
Amendment rights. Id. at ¶ 67.
alleges that members of the board of assessors were aware of
his protests in opposition to property taxes and his
challenges to the validity of those taxes. He contends that
those defendants violated his Fourteenth and First Amendment
rights by failing to respond to his tax protests and
challenges. He alleges that he suffered emotional anguish
because his protests were ignored, which chilled his efforts
due to a feeling of powerlessness. He also alleges that
defendants conspired to retaliate against his First Amendment
rights by hiring an attorney and by failing to properly
respond to his protests.
brings a separate claim against Jessica Olson based on her
notice to him of an impending tax deed and his interaction
with her on August 26, 2015, the deadline provided in the
notice. Kane alleges that the notice of an impending tax deed
was intended to “snub and outrage me, which it
did.” Id. at ¶ 122. Kane sent a letter
about the notice but did not receive a response, “again
slapping me in the face by ignoring my beliefs of my rights
being violated.” Id. at ¶ 123.
deadline for paying his property taxes, August 26, 2015, Kane
appeared at the tax collector's window in the town
office. Olson asked if she could help him, which upset Kane
because she did not acknowledge that she knew him, despite
all of his protest letters. Kane called his payment an
extortion fee, rather than payment of property taxes due.
Olson disagreed with his explanation. Kane insisted on a
receipt before he tendered the money, and began to toss
bundles of money on the counter.
said that she felt threatened. Unbeknownst to Kane, Olson
called the police who responded and were present in the
office while Kane completed payment of his taxes. Kane
noticed the police officers after he left the counter.
Because Kane appeared to be calm, no further interaction with
the police occurred.
alleges, nevertheless, that Olson attempted to “cause
[the police] to kill or otherwise injure me, or to remove me
from the town office” and “prevent me from paying
my taxes so she could use the statutory tax deed process to
take my shelter and extinguish my family.” Id.
at ¶ 136. Kane alleges additional claims of
constitutional violations and conspiracy based on his ...