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Frost v. State

United States District Court, D. New Hampshire

April 5, 2019

Douglas E. Frost and Jennifer A. Frost
v.
State of New Hampshire

          Douglas E. Frost, pro se.

          Jennifer A. Frost, pro se.

          REPORT AND RECOMMENDATION

          Andrea Johnstone, United States Magistrate Judge.

         Plaintiffs 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) (“Parker”).

         The 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).

         Background

         In 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 8.[1] 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.

         Plaintiffs 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.[2] 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.

         The 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.[3]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.

         Discussion

         I. Preliminary Review

         A. Standard

         The 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).

         B. Eleventh ...


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