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Kane v. Town of New Ipswich

United States District Court, D. New Hampshire

February 21, 2017

Michael Kane
Town of New Ipswich, et al. Opinion No. 2017 DNH 030

          Michael Kane, pro se Michael P. Courtney, Esq, . Russell F. Hilliard, Esq.


          Landya McCafferty, United States District Judge

         Michael 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 reconsideration.

         Standard of Review

         “The 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).


         In his 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.

         Kane 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.

         Kane 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.[1] Id. at ¶ 67.

         Kane 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.

         Kane 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.

         On the 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.

         Olson 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.

         Kane 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 ΒΆ 136. Kane alleges additional claims of constitutional violations and conspiracy based on his ...

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