United States District Court, D. New Hampshire
MCAULIFFE UNITED STATES DISTRICT JUDGE
plaintiff, Robert Every, brings this action against the Town
of Littleton, New Hampshire, as well as several town
officials in their official capacities. He alleges that the
defendants, either individually or collectively, violated his
“protections under the Fourth, Fifth, Sixth, and
Fourteenth Amendments.” Compl. ¶ 1. Every also
advances common law claims for false arrest, malicious
prosecution, and libel. Id. Defendants move to
dismiss all of plaintiff's claims, asserting that none
states a viable cause of action. See generally Fed.
R. Civ. P. 12(b)(6). Every objects.
reasons discussed, defendants' motion to dismiss is
granted, but Every is afforded leave to file an amended
complaint as to some of his claims, if he can do so in good
ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the court must “accept as true all well-pleaded facts
set out in the complaint and indulge all reasonable
inferences in favor of the pleader.” SEC v.
Tambone, 597 F.3d 436, 441 (1st Cir. 2010). Although the
complaint need only contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a)(2), it must allege each
of the essential elements of a viable cause of action and
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation and internal punctuation omitted). The
“plausibility” standard is satisfied if the
factual allegations in the complaint, along with reasonable
inferences, show more than a mere possibility of liability.
Walbridge v. Northeast Credit Union, 299 F.Supp.3d
338, 342 (D.N.H. 2018) (citing Germanowski v.
Harris, 854 F.3d 68, 71 (1st Cir. 2017)).
a court must decide a motion to dismiss exclusively upon the
allegations set forth in the complaint and the documents
specifically attached, or convert the motion into one for
summary judgment. See Fed.R.Civ.P. 12(2). There is,
however, an exception to that general rule, as “[a]
district court may also consider ‘documents
incorporated by reference in [the complaint], matters of
public record, and other matters susceptible to judicial
notice.'” Giragosian v. Ryan, 547 F.3d 59,
65 (1st Cir. 2008) (quoting In re Colonial Mortgage
Bankers Corp., 324 F.3d 12, 20 (1st Cir. 2003))
(alterations in original).
parties have previously litigated issues related to this
suit. Plaintiff references those state court cases in his
complaint, and defendants have submitted filings and orders
from those prior actions in support of their motion.
Documents from prior state court adjudications are ordinarily
considered “[m]atters of public record.”
Giragosian, 547 F.3d at 65 (citing Boateng v.
InterAmerican Univ., Inc., 210 F.3d 56, 60 (1st Cir.
2000)). And, neither party objects to the court's
consideration of these records. Accordingly, the court may
consider them without converting defendants' motion into
one for summary judgment.
the factual allegations of the complaint as true - as the
court must at this juncture - the relevant background is as
follows. Every is the president of the Esterhill Boat Service
Corporation. That corporation owns a building on Meadow
Street in Littleton, New Hampshire, out of which two
businesses operate: Asian Garden and Bagel Depot. Every does
not have an ownership interest in either business.
much of the time relevant to this proceeding, the Asian
Garden held a wastewater permit, as required by the
town's local ordinance (that permit, it seems, relates to
the restaurant's use of the town's sewer system and
apparently relates in some way to its use of grease traps in
its drains, which are designed to minimize introduction of
grease into the sewer system). The other business - Bagel
Depot - did not have a wastewater permit (something Every
says he repeatedly told town officials about). According to
Every, he has never personally had (or been required to have)
a wastewater permit, since he does not own the building, nor
does he occupy it, nor does he make any discharges into the
town sewer system.
unspecified time, the town began having problems with its
sewer system. Despite far larger retail businesses in town
that also discharged waste water into the public sewer system
(e.g., McDonalds, Applebee's, 99 Restaurant, and
Wal-Mart), Every says the town targeted the building owned by
Esterhill Boat Service Corporation as a potential source of
the sewer problems. Every asserts that the property was
targeted at least in part because Chief of Police Paul Smith
held a personal grudge against him, one arising from an
incident that occurred many years ago. When Every learned of
the enforcement action, he says he wrote a letter to the town
selectmen and a No. of town officials, asking for a meeting,
so he might explain the situation and address the town's
concerns. That letter was ignored, as were Every's
follow-up efforts to meet with town officials. Shortly
thereafter, a newspaper printed a front-page article that
(incorrectly) identified Every as the owner of the building
and falsely stated that he was responsible for the town's
sewer problems. Similar articles portraying Every in a
negative light soon followed in other newspapers owned by the
same publishing entity. Every suspects that one or more town
officials provided the newspaper with the false information
upon which the original article, as well as those that
followed, were based.
claims that the town knew that the Meadow Street building was
owned by the corporation, Esterhill Boat Service, rather than
Every personally. See Pl.'s Obj. to Mot. to
Dismiss, Exhibit C, Letter from Town of Littleton (document
no. 8-1) at 3. Nevertheless, in July of 2016, Every was
criminally charged with some sort of illegal conduct relating
to the grease traps in the Meadow Street building and/or
wastewater discharge from that building into the town's
sewer system (the complaint is woefully unclear on this
point, but according to Every, he was “charged under
the sewer ordinance”).
event, shortly after Every was charged, the Littleton Police
Department sought and obtained a warrant to inspect the
grease traps at the Asian Garden and Bagel Depot. Every says
there are at least two problems with that search warrant.
First, he says Chief Smith and/or Detective Stephen Cox (it
is difficult to tell from the complaint) knowingly lied in
the affidavit supporting issuance of the warrant. It was
falsely represented, Every says, that (a) Every owns the
building, and (b) that Every held an “Industrial
Discharge Class III Permit.” Neither statement is true.
And, says Every, Smith and Cox knew or should have known
those statements were false. Second, Every says Detective Cox
exceeded the scope of the warrant when he searched an area
not covered by the warrant: the pump chamber in the
building's utility room (an area of the building
inaccessible from either the area leased by the Asian Garden
or Bagel Depot).
of the preparation of his defense, Every sought production
from the town of certain public records relating to the
town's sewer system and the businesses connected to it.
In particular, Every sought the “permits and sewer
plans for McDonald's, which is across the street”
from the subject building. State Court Compl. (document no.
6-2) at ¶ 5. His request for copies of public documents
was denied, on what Every asserts were legally questionable
grounds. According to Every, town officials refused to honor
his request for those public documents, citing his
forthcoming criminal trial. Those town officials told Every
they had been instructed to inform Every that they would not
release those public documents to him and, instead, he would
have to make a formal discovery request for those documents
from the criminal prosecutor.
criminal case proceeded to trial. After the prosecution
rested, the presiding judge promptly entered a judgment of
acquittal as a matter of law. Thereafter, pursuant to N.H.
Rev. Stat. Ann. 91-A, Every filed a
“Right-to-Know” action against the Town of
Littleton in Grafton Superior Court. On page two of his
complaint, Every summarized his claims as follows:
“This case is focused on two items: the denial of
public records and [the] failure [of town officials] to
comply with open meeting requirements [imposed by RSA
91-A.]” State Court Compl. (document no. 6-2) at ¶
4. It is, however, not entirely clear what relief he sought
in that action. He may have been seeking copies of the
documents related to the McDonald's restaurant's
sewer permits and connections. See Request for
Discovery (document no. 6-2) at 27. What is clear, however,
is that Every wanted the court to impose civil fines on town
officials for having acted in bad faith when they refused his
request for public documents. See RSA 91-A:8.
April of 2017, the trial court dismissed Every's Chapter
91-A action, holding that the town officials were not
obligated to honor Every's request. Specifically, the
court held that because the public records Every sought
“were anticipated to be used to defend the plaintiff in
his criminal case, the Littleton officials acted
appropriately in referring the plaintiff's request to the
Town Prosecutor.” Order on Motion to Dismiss (document
no. 6-3) (the “Grafton County Court Order”) at 5.
It does not appear that Every appealed that decision. For
purposes of this suit, the substantive legal merits of that
ruling, however doubtful, are not important.
January of 2018, Every filed this case against the Town of
Littleton and several town officials (in their official
capacities). As noted above, defendants now move to dismiss
all of Every's claims.
pro se complaint does not enumerate specific counts, as is
generally expected. Instead, the complaint states that the
case is based upon constitutional violations of the Fourth,
Fifth, Sixth, and Fourteenth Amendments; state law claims of
false arrest, malicious prosecution and libel; as well as
violations of Title 18 U.S.C. §§ 241-242.
Every's claims generally relate to three events: the
search of the Meadow Street building; the filing of criminal
charges against Every for violation of a town ordinance; and
Every's Right to Know Law requests for the town's
liberally, as it must be, the complaint asserts the following
federal claims: (i) violation of the Fifth and Fourteenth
Amendment (based on Littleton's refusal to release
publicly available sewer records to Every, and singling Every
out for enforcement action); (ii) violation of the Sixth
Amendment (based on Littleton's refusal to release
publicly available sewer records to Every during the criminal
discovery process); (iii) violation of the Fourth Amendment
(based on Littleton police officers' false statements to
procure a warrant to search the Meadow Street building, and
the officers exceeding the scope of the warrant, and
malicious prosecution); and (iv) violation of 18 U.S.C.
§§ 241-242 (based on Littleton's agents
entering into a civil conspiracy to injure, oppress, and
intimidate Every under color of law). Every also asserts
state law claims for false arrest, libel and malicious
Rooker Feldman Doctrine
Right to Know Request
to the extent plaintiff's claims challenge the Grafton
County Court judgment in his Chapter 91-A, Right to Know Law
case, this court is without subject matter jurisdiction to
address such claims. That is because the
“Rooker-Feldman doctrine precludes federal jurisdiction
over a challenge to a state court judgment to which the
challenger was a party.” Miller v. Nichols,
586 F.3d 53, 59 (1st Cir. 2009) (citations omitted).
Rooker-Feldman, a federal district court generally
cannot review a state court's final judgment, however
suspect it might be. See Lance v. Dennis, 546 U.S.
459, 463 (2006) (under Rooker-Feldman doctrine,
federal district “courts are precluded from exercising
appellate jurisdiction over final state-court
judgments”); Rooker v. Fidelity Trust Co., 263
U.S. 413, 416 (1923). The doctrine applies to cases where
“the losing party in state court filed suit in federal
court after the state proceedings ended, complaining of an
injury caused by the state-court judgment and seeking review
and rejection of that judgment.” Galibois v.
Fisher,174 Fed.Appx. 579, 580 (1st Cir. 2006) (quoting
Exxon Mobil Corp. v. Saudi Basic Indus., 544 U.S.
280, 291 (2005)). However, “if the plaintiff alleges a
constitutional violation by an adverse party ...