Hendricks v. DRED CV-01-307-M 03/12/02 P
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Gary W. Hendricks and
Kathleen L. Hendricks
v. Civil No. 01-307-M
Opinion No. 2002 DNH 060
George M. Bald, Commissioner, et a l .
REPORT AND RECOMMENDATION
In this civil rights action, pro se plaintiffs Gary and
Kathleen Hendricks seek relief against various state and local
government officials1 to redress alleged violations of their
constitutional rights. Before this court is the plaintiffs'
motion for a preliminary injunction order directing the
defendants to use their authority to prohibit the use of
motorized vehicles on an abandoned railroad bed abutting the
1The defendants include George M. Bald, Commissioner for the
State of New Hampshire Department of Resources and Economic
Development, Paul Gray, Chief of the New Hampshire Division of
Parks and Recreation ("NHDPR") , Richard McLeod, Director of
NHDPR, Robert Spoerl, Program Specialist at the New Hampshire
Bureau of Trails, Ronald Alie, Colonel at the New Hampshire
Department of Fish & Game ("Fish & Game"), Todd Szewczyk,
Conservation Officer at Fish & Game, John J. Singelais, Selectman
for the Town of Greenville, New Hampshire ("Greenville"), Russell
R. Cook, Selectman for Greenville, Michael Lamarre, Selectman for
Greenville, David L. Benedict, Chief of Police for Greenville,
and Larry Duval, a police officer for Greenville.
plaintiffs' property. The plaintiffs' motion has been referred
to me for a report and recommendation pursuant to 28 U.S.C. §
636(b)(1)(B). For the reasons stated below, I recommend that the
motion be denied.
Background
Plaintiffs own a home in Greenville, New Hampshire, which
they had intended to operate as a bed-and-breakfast. Abutting
the plaintiffs' property is an abandoned railroad bed. At some
point after the plaintiffs purchased their home, members of the
public began operating motorized recreational vehicles along the
railroad bed. The presence of these vehicles behind the
plaintiffs' home has increased over the years. As a result, the
plaintiffs have been subjected to significant noise on a daily
basis and at all hours of the day and night. The noise from the
vehicles has disrupted the plaintiffs' efforts to raise
productive honeybees and turkeys on their property. In addition,
the vehicles create an extensive amount of dust that settles on
the plaintiffs' home. The plaintiffs further contend that as a
result of this use of the railroad bed, the area is littered with
trash and drug paraphernalia.
Due to the disturbances caused by motorized recreational
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vehicles along the railroad bed, the plaintiffs have not been
able to fulfill their desire to use their home as a bed-and-
breakfast and have been deprived of the peace and enjoyment that
they expected to obtain when they purchased their property.
Moreover, the plaintiffs have submitted evidence showing that in
the opinion of people qualified to assess the impact of noise on
property values, the plaintiffs have experienced a diminution in
the value of their property.
The plaintiffs have made exhaustive efforts to remedy their
situation. Initially, the railroad bed was owned by a railroad
company. The plaintiffs convinced the company to post signs on
the property and requested the local police to prevent
trespassers from entering the property. These efforts proved
fruitless. Subsequently, the plaintiffs attempted to purchase
the railroad bed from the railroad company.2 The State of New
Hampshire, however, exercised its right of first refusal, and
purchased the property instead. In addition, the plaintiffs have
complained to the defendants and/or their agencies repeatedly and
have contacted state legislators regarding the issue. None of
2The plaintiffs had hoped to purchase the railroad bed from
the railroad company in order to prevent motorized vehicles from
using the property and to maintain the land for other types of
recreational use.
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these actions has reduced or eliminated the presence of motorized
recreational vehicles behind plaintiffs' property.
According to the plaintiffs, the defendants have failed to
enforce state laws and local ordinances prohibiting the use of
motorized recreational vehicles along the railroad bed. The
defendants maintain that they have no such obligation. Moreover,
while the State concedes that the railroad bed has not been
designated as land for use by motorized recreational vehicles, it
argues that no state statutory authority specifically prohibits
such use.
___________________________ Discussion
Plaintiffs are seeking a preliminary injunction order
directing the defendants to enforce state and local laws
restricting the use of motorized recreational vehicles along the
railroad bed abutting the plaintiffs' property. Even assuming
the existence and applicability of such state and local laws, the
defendants correctly assert that the plaintiffs have failed to
demonstrate a likelihood of success on the merits of their civil
rights claims, and are therefore not entitled to preliminary
injunctive relief.
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1. Preliminary Injunction Standard
In order to determine whether a preliminary injunction is
appropriate, this court must apply the four part test adopted by
the First Circuit. The test requires the court to evaluate (1)
the likelihood that the plaintiffs will succeed on the merits,
(2) the potential for irreparable injury if the injunction is not
granted, (3) whether the harm to the plaintiffs outweighs the
harm defendants would suffer from the imposition of an
injunction, and (4) the effect of the issuance of an injunction
on the public interest. See Narraqansett Indian Tribe v.
Guilbert, 934 F.2d 4, 5 (1st Cir. 1991) . The critical factor is
the plaintiffs' ability to demonstrate a likelihood of success on
the merits. See Weaver v. Henderson,
984 F.2d 11, 12 (1st Cir.
1993). If the movant fails to show that it will probably succeed
on its claims, the court will deny the motion. Id.
2. Likelihood of Success on the Merits
Plaintiffs assert that by failing to enforce state and local
laws restricting the use of motorized recreational vehicles
behind plaintiffs' property, the defendants have deprived them of
their constitutional rights to due process and equal protection.3
3Plaintiffs brought their claims pursuant to 42 U.S.C. §
1983. "As is well established, § 1983 creates no independent
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I will address these claims in turn.
A. Due Process Claims
"The Due Process Clause of the Fourteenth Amendment provides
that '[n]o State shall . . . deprive any person of life, liberty
or property without due process of l a w ' DeShanev v. Winnebago
County Dep't of Soc. Servs., 489 U.S. 189, 194 (1989) . Because
the plaintiffs have not alleged a deprivation of any procedural
safeguards, their claim invokes the substantive rather than the
procedural component of the Due Process Clause. See i d . at 195.
In order to establish a violation of their right to substantive
due process, the plaintiffs may demonstrate either "that a
specific liberty or property interest protected by the federal
due process clause has been violated, or that the state's conduct
'shocks the conscience'." Coyne v. City of Somerville,
972 F.2d
440, 443 (1st Cir. 1992) (citations omitted) . See also Brown v.
Hot, Sexy & Safer Prods.,
68 F.3d 525, 531 (1st Cir. 1995). The
substantive rights, but rather provides a cause of action for
governmental violations of rights protected by federal law."
Cruz-Erazo v. Rivera-Montanez,
212 F.3d 617, 621 (1st Cir. 2000).
In order to state a claim under § 1983, "a plaintiff must allege
(l)the violation of a right protected by the Constitution or laws
of the United States and (2) that the perpetrator of the
violation was acting under color of law." I d . In this case, the
plaintiffs assert that the defendants, acting under color of
state law, violated the plaintiffs' constitutional rights to due
process and equal protection.
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plaintiffs have not demonstrated that they will be able to
succeed on either theory.
As the United States Supreme Court has explained,
nothing in the language of the Due Process Clause
itself requires the State to protect the life, liberty
or property of its citizens against invasion by private
actors. The Clause is phrased as a limitation on the
State's power to act . . . It forbids the State itself
to deprive individuals of life, liberty, or property
without 'due process of law,' but its language cannot
fairly be extended to impose an affirmative obligation
on the State to ensure that those interests do not come
to harm through other means . . . Its purpose was to
protect the people from the State, not to ensure that
the State protected them from each other.
DeShaney, 489 U.S. at 195-96. Consistent with these principles,
both Supreme Court and First Circuit cases generally recognize no
affirmative right to governmental aid, even where such assistance
may be necessary to secure property interests that the government
itself may not infringe. See i d . at 196; see also Martinez v.
Colon,
54 F.3d 980, 984 (1st Cir. 1995) ("the Due Process Clause
ordinarily does not require the state to protect an individual's
life, limb, or property against the marauding of third parties
not acting to the state's behoof."); Malachowski v. City of
Keene, 787 F.2d 704, 708 (1st Cir. 1986) (misuse or disregard of
state law by state officials does not constitute a deprivation of
property without due process of law). The plaintiffs have
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asserted no basis for recognizing an exception to this general
rule under the factual scenario presented in this case.
In a case that is factually similar to the matter before
this court, the Second Circuit refused to recognize a due process
right to the enforcement of applicable laws. In Gagliardi v.
Village of Pawling, plaintiff landowners asserted several claims
under section 1983, including due process claims, against various
municipal officials for failing to enforce applicable zoning laws
against the plaintiffs' neighbors. 18 F.3d 188, 192 (2d Cir.
1994). In particular, the plaintiffs accused the defendants of
violating their constitutional rights by failing to prevent a
neighboring business from causing excessive noise, storing
hazardous material on its property and inadequately draining its
land. Id. In affirming the district court's dismissal of the
plaintiffs' due process claims, the Second Circuit found that no
due process violation had occurred because the plaintiffs had no
right to demand that the municipal defendants enforce the zoning
laws. See i d .
I conclude that the Due Process Clause imposes no obligation
upon the defendants to enforce laws or ordinances prohibiting or
otherwise restricting the use of motorized recreational vehicles
on property abutting plaintiffs' home. Accordingly, the
plaintiffs have little if any prospect of succeeding on the
merits of their claim that the defendants' failure to enforce
such laws and ordinances has violated a liberty or property
interest protected by the federal Due Process Clause.
Nor are the plaintiffs likely to show that the defendants'
actions "shock the conscience." In order to show a violation of
due process under this theory, the plaintiffs must demonstrate
that the state action in question is "egregiously unacceptable,
outrageous, or conscience-shocking." Cruz-Erazo v. Rivera-
Montanez , 212 F.3d 617, 622 (1st Cir. 2000) (internal quotations
omitted). While not foreclosing the possibility that severe
verbal harassment could constitute "conscience shocking"
behavior, to date the First Circuit has found governmental
conduct to shock the conscience only in instances where "the
state actors engaged in 'extreme or intrusive physical conduct'."
Brown,
68 F.3d at 531 (quoting Souza v. Pina,
53 F.3d 423, 427
(1st Cir. 1995)). See also Cruz-Erazo,
212 F.3d at 622. Nothing
about the defendants' alleged conduct in this case is
sufficiently severe or outrageous to offend due process.
Accordingly, the plaintiffs have not shown that they are likely
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to prevail on their due process claims.
B. Equal Protection Claims
"The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall 'deny to any person within its
jurisdiction the equal protection of the laws,' which is
essentially a direction that all persons similarly situated
should be treated alike." City of Cleburne, Texas v. Cleburne
Living C t r ., 473 U.S. 432, 439 (1985) (quoting Plvler v. Doe,
457
U.S. 202, 216 (1982)). See also United States v. Craveiro,
907
F.2d 260, 265 (1st Cir. 1990)("Equal protection guarantees that
similar individuals will be dealt with in a similar manner by the
government."). In order to prevail on their equal protection
claim, therefore, the plaintiffs must show that the defendants
have treated them differently than they have treated other,
similarly situated property owners. See Rubinovitz v. Roqato, 60
F.3d 906, 910 (1st Cir. 1995). In addition, the plaintiffs must
demonstrate that the discrimination was intentional. See Havden
v. Gravson,
134 F.3d 449, 453 (1st Cir. 1998) (to succeed on their
equal protection claim, the plaintiffs must establish
discriminatory intent); Brandt v. Davis,
191 F.3d 887, 893 (8th
Cir. 1999)(state officers' unlawful administration of a state
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statute resulting in unequal application to those who are
entitled to be treated alike violates equal protection only if
the discrimination is intentional or purposeful).
The plaintiffs have offered no evidence indicating that the
defendants would have enforced applicable laws against the use of
motorized recreational vehicles on state property at the request
of another property owner who was similarly situated to the
plaintiffs. Nor have they shown that the defendants purposefully
discriminated against them. Accordingly, the plaintiffs are
unlikely to succeed on the merits of their equal protection
claim. See Gagliardi, 18 F.3d at 193 (finding equal protection
claim insufficient as a matter of law where plaintiffs failed to
allege that municipal defendants would have enforced zoning laws
against neighboring property at the request of another similarly
situated resident) .
Conclusion
Because the plaintiffs have failed to demonstrate that they
are likely to succeed on the merits of their claims against the
defendants, I recommend that their motion for a preliminary
injunction (document no. 2) be denied.
Any objections to this Report and Recommendation must be
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filed within ten (10) days of receipt of this notice. Failure to
file objections within the specified time waives the right to
appeal the district court's order. See Unauthorized Practice of
Law Comm, v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United
States v. Valencia-Copete,
792 F.2d 4, 6 (1st Cir. 1986) .
James R. Muirhead
United States Magistrate Judge
Date: March 12, 2002
cc: Gary W. Hendricks, pro se
Kathleen L. Hendricks, pro se
_____ Amy B. Mills, Esq.
Donald L. Smith, Esq.
Patrick E. Donovan, Esq.
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