United States District Court, D. New Hampshire
Douglas E. Frost and Jennifer A. Frost
State of New Hampshire
Douglas E. Frost, pro se.
Jennifer A. Frost, pro se.
REPORT AND RECOMMENDATION
Johnstone, United States Magistrate Judge.
Douglas E. Frost and Jennifer A. Frost initiated this case,
brought pursuant to 42 U.S.C. § 1983, by filing a
“Petition for Ex-Parte Injunction” (Doc. No. 1).
Naming the State of New Hampshire as the defendant,
plaintiffs seek an order preventing the issuance and/or
execution of a writ of possession in a state court
landlord-tenant action in which the Frosts are defendants,
Parker v. Frost, No. 458-2018-LT-00163 (N.H. Cir.
Ct., 9th Cir.-Dist. Div.-Milford)
court has construed the plaintiffs' petition as a
complaint in a new civil action seeking a temporary
restraining order (“TRO”) and preliminary and
permanent injunctive relief. The district judge denied
plaintiffs' request for a TRO and referred the matter to
the undersigned magistrate judge for a Report and
Recommendation (“R&R”) as to plaintiffs'
request for a preliminary injunction. See Nov. 27, 2018 Order
(Doc. No. 3); Nov. 28, 2018 Order (Doc. No. 4). Because
plaintiffs are proceeding pro se and in forma pauperis, the
complaint is also before the court for preliminary review
under LR 4.3(d)(2) and 28 U.S.C. § 1915(e)(2).
October 2018, the Frosts' landlord brought an action
against the Frosts in state court, seeking a writ of
possession for nonpayment of rent. See Parker (Index
No. 1). On November 13, 2018, the state court issued an Order
in that matter granting the Frosts' landlord a writ of
possession. See Id. (Index No. 10); Doc. No. 1, at
On November 14, 2018, the court sent the parties notice of
the November 13, 2018 order, with a copy of that order. See
Doc. No. 1, at 7.
allege that on November 21, 2018, they attempted to file a
“Notice of Intent to Appeal” in the state court,
as required by, and in compliance with, N.H. Rev. Stat. Ann.
(“RSA”) § 540:20. Plaintiffs allege that the
state court clerk refused to accept the Frosts' Notice of
Intent to Appeal based on the clerk's incorrect
calculation of the seven-day period for filing that document,
and resulting conclusion that the Notice of Intent to Appeal
had to be filed by November 20, 2018.
Frosts then filed this action, challenging the
constitutionality of RSA § 540:20. Plaintiffs assert
that RSA § 540:20 “as written prevented [the
plaintiffs] from filing a timely Notice of Appeal. . ., in
that the Clerk of such stated court in her interpretation of
the law arbitrarily prohibited the plaintiff[s] from filing
there [sic] Notice of Appeal, ” in violation of their
Fourteenth Amendment due process rights.Doc. No. 1, at 2.
Plaintiffs seek injunctive relief “stopping the
issuance of any Possessory Action relative to
[Parker] until the plaintiff can obtain concurrance
[sic] from the court on the matters of law contained within
the present civil action.” Id. at 4.
court may dismiss claims asserted in a complaint filed in
forma pauperis, if the court lacks subject matter
jurisdiction, a defendant is immune from the relief sought,
the complaint fails to state a claim, or the action is
frivolous or malicious. See 28 U.S.C. § 1915(e)(2); LR
4.3(d)(2). In determining whether a pro se complaint states a
claim, the court must construe the complaint liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). To survive preliminary review, the complaint must
contain “sufficient factual matter, accepted as true,
to ‘state a claim to relief.'” See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation
omitted). The court treats as true all well-pleaded factual
allegations, and construes reasonable inferences in
plaintiff's favor. See Ocasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).