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Every v. Town of Littleton

United States District Court, D. New Hampshire

September 11, 2018

Robert Every, Plaintiff
Town of Littleton, New Hampshire; Andrew Dorsett, Town Manager; Milton Bratz, Selectman; Schuyler Sweet, Selectman; Edward Hennessey, Former Selectman; Paul Smith, Chief of Police; Stephen Cox, Detective Sergeant; and George McNamara, Public Works Director, Defendants



         Pro se 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.

         For the 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 faith.

         Standard of Review

         When 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)).

         Generally, 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).

         Both 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.


         Accepting 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.

         During 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.

         At some 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.

         Every 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”).

         In any 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).

         As part 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.[1]

         Every's 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.

         In 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.

         In 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.

         Every's 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 sewer records.

         Read 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 prosecution.


         1. Rooker Feldman Doctrine

         A. Right to Know Request

         First, 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).

         Under 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 ...

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