Baldi v. Bourn, et al. CV-01-396-JD 05/16/02
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
John Baldi
v. Civil No. 01-39 6-JD
Opinion No. 2002 DNH 095
Eric Bourn, James McKenzie,
and Paul Pearson
O R D E R
The plaintiff, John Baldi, proceeding pro se, brings a civil
rights action pursuant to 42 U.S.C.A. § 1983 against Eric Bourn,
a police officer in Epsom, New Hampshire; James McKenzie, a
conservation officer with the New Hampshire Fish and Game
Department, and Paul Pearson, a resident of Epsom. Baldi alleges
that the defendants violated his Fourth and Fourteenth Amendment
rights and committed many state law violations when Bourn and
Pearson entered Baldi's field after Baldi shot two deer.
McKenzie moves to dismiss the claims against him, and Bourn moves
for judgment on the pleadings on counts XV through XXI. Baldi
objects to both motions.
Background
John Baldi lives on a farm on Center Hill Road in Epsom, New
Hampshire, where he grows alfalfa and Christmas trees. He
alleges that he complained to the New Hampshire Fish and Game
Department about damage to his crops caused by deer, to no avail.
He states that in 1995 he discovered that he had a right to shoot
deer on his property and obtained an order from Merrimack County
Superior Court requiring the Fish and Game Department to enter an
agreement with him that would allow him to shoot deer on his
property for four years.
During the evening of November 8 or 9, 1998, at
approximately 10 p.m., Baldi shot two deer in his field located
on the south side of the road. Shortly thereafter. Officer Bourn
drove an Epsom police cruiser across the field to where Baldi was
standing with the deer. Bourn got out of the cruiser and talked
with Baldi.
While they were talking, a large white boom truck drove
across the field toward them. Pearson, who was unknown to Baldi,
got out of the truck and charged toward Baldi in a menacing way.
Officer Bourn stepped in front of Pearson, told him everything
was all right, and told him to leave. Pearson and Bourn left.
Baldi alleges that Bourn and Pearson then met with McKenzie
at the cemetery on Center Hill Road. He also alleges that the
three had met before Bourn and Pearson entered his field. He
states that McKenzie, Bourn, and Pearson knew that it was Baldi
shooting in the field.
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I. McKenzie's Motion to Dismiss
McKenzie moves to dismiss all of the federal claims brought
against him on the grounds that Baldi has failed to allege that
he was acting under color of state law and has failed to allege
any constitutional violations. If the federal claims are
dismissed, McKenzie asks that the court decline supplemental
jurisdiction as to Baldi's state law claims. Baldi objects,
primarily relying on the argument and cases cited in his
complaint.
When considering a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12( b ) (6), the court takes all well-pled
facts in the complaint as true and draws all reasonable
inferences in the plaintiff's favor. Tompkins v. United
Healthcare of New England. Inc.. 203 F.3d 90, 93 (1st Cir. 2000) .
The court "must carefully balance the rule of simplified civil
pleadings against our need for more than conclusory allegations."
Aybar v. Crispin-Reves,
118 F.3d 10, 13 (1st Cir. 1996)
(quotation omitted). A claim will be dismissed "only if it
clearly appears, according to the facts alleged, that the
plaintiff cannot recover on any viable theory." Langadinos v.
Am. Airlines, Inc.,
199 F.3d 68, 69 (1st Cir. 2000) . A complaint
filed by a pro se litigant is held to less stringent standards
than one drafted by a lawyer. See Haines v. Kerner,
404 U.S.
3
519, 520 (1972) .
In order to bring a § 1983 claim, a plaintiff must allege a
constitutional violation caused by state action. See Luqar v.
Edmondson Oil Co., Inc., 457 U.S. 922, 929 (1982); Roche v. John
Hancock M u t . Life Ins. Co. ,
81 F.3d 249, 253 (1st Cir. 1996) .
Section 1983 does not provide relief for actions by private
parties who are not acting under color of state law. See
Gonzalez-Morales v. Hernandez-Arencibia,
221 F.3d 45, 49 (1st
Cir. 2000). When a § 1983 claim is alleged against a state
officer based on the officer's conduct in the course of his
official duties, even when that conduct is a misuse or abuse of
his authority, the state action requirement is satisfied. See
Hafer v. Melo,
502 U.S. 21, 28 (1991). "In distinguishing
private action from state action, the general inquiry is whether
'a state actor's conduct occurs in the course of performing an
actual or apparent duty of his office, or . . . is such that the
actor could not have behaved in that way but for the authority of
his office.'" Zambrana-Marrero v. Suarez-Cruz,
172 F.3d 122, 125
(1st Cir. 1999) (quoting Martinez v. Colon,
54 F.3d 980, 986 (1st
Cir. 1995) ) .
McKenzie contends that Baldi has not alleged facts that show
that he was acting in his official capacity when the events Baldi
alleges occurred. Baldi alleges that McKenzie is "a State Police
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officer, in the State of New Hampshire, employed by the New
Hampshire Fish and Game Department, and performs his official
duties from New Hampshire Fish and Game Office . . .
Complaint I S . He refers to McKenzie as a state police officer
throughout the complaint. Although Baldi's allegations do not
explain what official duties McKenzie was undertaking by meeting
with Bourn and Pearson in the Center Hill Cemetery, an inference
may be drawn that the alleged meeting involved McKenzie's
official duties as a Fish and Game Officer since it pertained to
Baldi's activity of shooting deer. Given the lenient view taken
of pro se pleadings, Baldi's allegations of official conduct are
sufficient to avoid dismissal for lack of state action.1
A. Count II Egual Protection - Conspiracy
Baldi alleges in Count II that McKenzie conspired with Bourn
and Pearson to acquiesce in Bourn's failure to prosecute Pearson
for his criminal actions against Baldi. He contends that Bourn's
failure to prosecute Pearson violated his Fourteenth Amendment
right to equal protection. McKenzie moves to dismiss the
conspiracy claim against him on the ground that Baldi has failed
to allege an equal protection violation.
1Although Baldi is apparently a law student, he is,
nevertheless, a pro se litigant.
5
The equal protection clause of the Fourteenth Amendment
requires states to provide "equal protection of the laws" to all
persons within a state's jurisdiction. U.S. Const, amend XIV.
To state a claim for a violation of equal protection, a plaintiff
must "allege facts indicating that, compared with others
similarly situated, [he] was selectively treated based on
impermissible considerations such as race, religion, intent to
inhibit or punish the exercise of constitutional rights, or
malicious or bad faith intent to injure a person." Barrington
Cove Ltd. P'ship v. R.I. Housing & Mortgage Fin. Co., 246 F.3d 1,
7 (1st Cir. 2001) (internal quotation omitted). Since there is
no constitutional right to police protection, a plaintiff
alleging a violation of equal protection based on an officer's
failure to prosecute criminal conduct must allege facts to show
the officer's discriminatory intent. See Havden v. Gravson.
134
F.3d 449, 452-53 (1st Cir. 1998); see also United States v.
Armstrong,
517 U.S. 456, 465 (1996).
Baldi alleges no facts to indicate that Bourn was motivated
by discriminatory intent in his decision not to prosecute Pearson
for his allegedly criminal conduct when he entered Baldi's field.
Absent discriminatory intent, Baldi does not state a claim that
Bourn violated his right to equal protection. Since a civil
rights conspiracy claim requires proof of a constitutional
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deprivation, McKenzie is entitled to summary judgment on Baldi's
claim that McKenzie conspired with Bourn and Pearson to violate
his right to equal protection. See Brennan v. Hendriqan, 888
F.2d 189, 195 (1st Cir. 1989); Rubin v. Smith,
919 F. Supp. 534,
539 (D.N.H. 1996) .
B. Counts III and IV - Fourth Amendment
In Count III, Baldi alleges that McKenzie violated his
Fourth Amendment right to be secure in his person and property by
allowing and sending Pearson onto Baldi's property "in an attempt
to feint seizure, harm, threaten, and frighten him in violation
of his rights." Complaint 5 35. Baldi alleges in Count IV that
the defendants conspired to violate his right to be secure in his
person and property. McKenzie moves to dismiss both claims in
part on the ground that Baldi has not alleged a Fourth Amendment
violation.
"The Fourth Amendment provides that '[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated . . . .'" Nieves v. McSweeney, 241 F.3d 46, 54 (1st
Cir. 2001) (quoting U.S. Const, amend. IV). "'[A] person has
been "seized" within the meaning of the Fourth Amendment only if,
in view of all of the circumstances surrounding the incident, a
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reasonable person would have believed that he was not free to
leave.'" Fournier v. Reardon, 160 F.3d 754, 757 (1st Cir. 1998)
(quoting United States v. Mendenhall,
446 U.S. 544, 554 (1980) ) .
Intrusions into personal privacy implicate the Fourth Amendment
only when the challenged conduct infringes on a person's actual
expectation of privacy that society also recognizes as
reasonable. Vega-Rodriguez v. P.R. Tel. Co.,
110 F.3d 174, 178
(1st Cir. 1997); United States v. Lewis,
40 F.3d 1325, 1333 (1st
Cir. 1994) .
Privacy rights have been recognized in the home and places
adjacent to the home, known as the curtilage, but not in less
private areas such as the walkway leading to the house. See
Bilida v. McCleod, 211 F.3d 166, 171 (1st Cir. 2000). Open
fields, even those protected with fencing and "no trespassing"
signs, are not subject to an expectation of privacy protected by
the Fourth Amendment. Oliver v. United States,
466 U.S. 170, 176
(1984); see also United States v. Lewis,
240 F.3d 866, 871 (10th
Cir. 2001); Maughon v. Bibb County,
160 F.3d 658, 661 (11th Cir.
1998). A voluntary discussion with police, when the individual
is free to leave, is neither a search nor a seizure. See United
States v. Scott,
270 F.3d 30, 40 (1st Cir. 2001) .
Baldi alleges that Bourn, wearing his uniform, drove a
police cruiser to the area of Baldi's field where he was
standing, got out of the cruiser, and talked with him. He
alleges that Pearson drove his truck into the field, got out of
his truck, and charged at Baldi in a menacing manner. Bourn
prevented Pearson from reaching Baldi, and then both Bourn and
Pearson left.
Those allegations do not even suggest that Baldi was not
free to leave at any time during the alleged events or that he
had a reasonable expectation of privacy in that area of his
field.2 Therefore, Baldi has failed to state a Fourth Amendment
violation. As noted above, in the absence of a constitutional
violation, he also fails to state a conspiracy claim. Counts III
and IV against McKenzie are dismissed.
C. Counts V and VI - Fourteenth Amendment
Baldi alleges that the defendants' conduct deprived him of
his Fourteenth Amendment right "to possess, protect and use
property in a legal manor [sic], free of government or police
interference . . . ." Complaint I 41. He also alleges that
2Although a show of force is not required to effect a
seizure, a display of authority does not amount to a seizure
"unless it results in the intentional ''acquisition of physical
control' over the subject and causes a ''termination of [his]
freedom of movement.'" Britton v. Maloney, 196 F.3d 24, 30 (1st
Cir. 1999) (quoting Brower v. County of Inyo,
489 U.S. 593, 596-
97 (1989) ) .
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McKenzie conspired with Bourn and Pearson to deprive him of that
right. McKenzie moves to dismiss in part on the ground that
Baldi does not allege a due process violation cognizable under
the Fourteenth Amendment.
Pertinent to Baldi's claim, the Fourteenth Amendment
prohibits the states from "depriv[ing] any person of life,
liberty, or property, without due process of law." U.S. Const,
amend. XIV. As part of a procedural due process claim under the
Fourteenth Amendment, a plaintiff must allege facts to show that
the defendants deprived him of a property interest protected by
state law. See PFZ Props., Inc. v. Rodriquez, 928 F.2d 28, 30
(1st Cir. 1991). To state a substantive due process claim, a
plaintiff must allege either that he was deprived of a protected
property interest or entitlement or that the defendants' "conduct
was so egregious as to shock the conscience." Barrington Cove
Ltd.,
246 F.3d at 5.
Baldi's allegations do not suggest that he was deprived of
any property interest or protected entitlement. The defendants
did not take anything or prevent Baldi from using his property.3
3By the time Bourn and Pearson arrived, Baldi had already
shot the deer. He does not allege that they took the deer,
prevented him from shooting other deer, or in any way deprived
him of any property or alleged property interests. The court
does not address the issue urged by Baldi as to whether his
shooting activities were legal. See N.H. Rev. St. Ann. § 207:3.
10
The defendants' conduct does not shock the conscience. Although
Baldi argues that the defendants trespassed onto his property, "a
trespass to property, negligent or intentional, is a common law
tort; it does not infringe the federal constitution." Wise v.
Bravo, 666 F.2d 1328, 1335 (10th Cir. 1981) .
Lacking allegations that he was deprived of a protected
property interest or subjected to conduct that shocks the
conscience, Baldi does not state a Fourteenth Amendment due
process claim. Therefore, his claim of a violation of his
Fourteenth Amendment right in Count V and his conspiracy claim in
Count VI are dismissed as to McKenzie.
D. State Law Claims
In the event the federal claims against McKenzie were
dismissed, he asks the court to decline supplemental jurisdiction
as to the state law claims against him. Since McKenzie is the
only defendant, of three, who moved to dismiss the federal
claims, the federal claims remain as to the other two defendants.
Therefore, the court has original subject matter jurisdiction
over the civil rights action under 28 U.S.C.A. § 1331 and
supplemental jurisdiction over the state law claims as to all
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three defendants under 28 U.S.C.A. § 1367(a).4 Should the
federal claims against Eric Bourn and Paul Pearson ultimately be
dismissed also, the court will decline supplemental jurisdiction
on all state claims.
II. Eric Bourn's Motion for Judgment on the Pleadings
Bourn moves for judgment on the pleadings in his favor on
six of the state law claims Baldi alleges against him. Counts XV
through XXI. Those claims allege causes of action based on
alleged violations of New Hampshire criminal statutes and
conspiracy to violate those statutes. Bourn contends that no
private right of action exists as to the cited statutes.
Baldi claims a private right of action pursuant to New
Hampshire Revised Statutes Annotated ("RSA") §§ 634:2, 629:2,
629:3, 631:3, 631:4, and 635:2. Under New Hampshire law, no
private right of action arises under a statute "[ajbsent the
legislature's express or implied intent to create a private right
of action." Snierson v. Scruton, 145 N.H. 73, 79 (2000). Baldi
cites RSA 625:5 in support of his claims.
RSA 625:5 provides that the criminal code does not affect
4 McKenzie does not ask the court to decline supplemental
jurisdiction based on other grounds. See, e.g.. 28 U.S.C.A. §
1 3 6 7 (c).
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any right or liability "authorized by law to be recovered or
enforced in a civil action, regardless of whether the conduct
involved in such civil action constitutes an offense defined in
this code." Far from suggesting the legislature's intent to
create private rights of action under the criminal code, by
exempting existing civil causes of action from any effect due to
the criminal code, RSA 625:5 implies that the criminal code does
not provide civil causes of action. Baldi provides no other
support for his theory that private rights of action exist under
the cited provisions of the criminal code. See Snierson, 145
N.H. at 79.
Since New Hampshire law does not appear to recognize private
rights of action pursuant to the cited provisions of the criminal
code. Bourn is entitled to judgment on the pleadings on Counts XV
through XXI. See also 28 U.S.C.A. § 1 3 6 7 (c) (1) .
Conclusion
For the foregoing reasons, defendant James McKenzie's motion
to dismiss (document no. 7) is granted as to the federal claims
brought against him but is denied as to the state claims.
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Defendant Eric Bourn's motion to dismiss Counts XV through XXI is
granted.
SO ORDERED.
Joseph A. DiClerico, Jr.
United States District Judge
May 16, 2 0 02
cc: John A. Baldi, pro se
R. Matthew Cairns, Esquire
Paul A. Maggiotto, Esquire
Amy B. Mills, Esquire
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