Kane v. New Ipswich, NH, Town of et al
///ORDER granting 54 Motion to Dismiss for Failure to State a Claim. Plaintiff's claims alleged in the amended complaint are dismissed with prejudice. Clerk shall enter judgment and close the case. So Ordered by Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 16-cv-123-LM
Opinion No. 2017 DNH 001
Town of New Ipswich, et al.
O R D E R
Michael Kane, proceeding pro se, brought suit against the
Town of New Ipswich, New Hampshire, and present and former town
In his original complaint (doc. no. 1), Kane
challenged defendants’ efforts to collect property taxes from
him, asserting that his property is a “household utensil” that
is exempt from property tax pursuant to RSA 80:9.
granted defendants’ motion to dismiss Kane’s original complaint
due to the jurisdictional bar of the Tax Injunction Act (“TIA”),
28 U.S.C. § 1341.
The court, however, allowed Kane an
opportunity to file an amended complaint “to state claims
arising out of the events alleged in this case that do not
challenge the validity of the New Ipswich tax assessment and
collection process, if any such claims exist.”
Doc. no. 50 at
Kane filed an amended complaint (doc. no. 51).
move to dismiss (doc. no. 54).
Standard of Review
As with their motion to dismiss the original complaint,
defendants move to dismiss the amended complaint both for
failure to state a claim, under Federal Rule of Civil Procedure
12(b)(6), and for lack of subject matter jurisdiction, under
Federal Rule of Civil Procedure 12(b)(1).
For purposes of this
motion, where extrinsic evidence is not an issue, the standard
of review under both rules is the same.
Cf. U.S. ex rel.
Winkelman v. CVS Caremark Corp., 827 F.3d 201, 207 (1st Cir.
As stated in the court’s prior order, when considering
motions under Rules 12(b)(1) and 12(b)(6), the court accepts as
true the properly pleaded facts and takes all reasonable
inferences from those facts that support the plaintiff’s claims.
Mulero-Carrillo v. Roman-Hernandez, 790 F.3d 99, 104 (1st Cir.
2015); New England Patriots Fans v. Nat’l Football League, No.
16-10659-FDS, 2016 WL 3248207, at *2 (D. Mass. June 10, 2016).
Based on the properly pleaded facts, the court determines
whether the plaintiff has stated “a claim to relief that is
plausible on its face.”
544, 570 (2007).
Bell Atl. Corp. v. Twombly, 550 U.S.
A claim is plausible if the facts as pleaded,
taken in the context of the complaint and in light of “judicial
experience and common sense,” allow the court to draw “the
reasonable inference that the defendant is liable for the
Ashcroft v. Iqbal, 556 U.S. 662, 678-79
In the amended complaint, which is 57 pages long, Kane
provides a section of factual allegations, followed by 15
Kane alleges that he has challenged town officials’
authority to collect property taxes from him for many years and
has notified town officials that their tax collection activities
violate his rights under the federal constitution.
that his tax collection protests have made defendants dislike
him which has, in turn, caused him distress.
In general, Kane’s claims arise from his dissatisfaction
with defendants’ responses to his tax collection protests, which
he claims have been cruel, dismissive, and insufficient.
Specifically, Kane alleges that each challenge to defendants’
authority to collect his taxes “was either ignored and not
responded to at all, or responded to with vexatious and
insulting replies implying nonsense such as the ‘Right to Know’
law . . . or with feigning of ignorance or stupidity as to
comprehending what I was asking.”
Doc. no. 51 at ¶ 36.
also alleges a claim against a particular official, Jessica
Olson, arising out of his interaction with her when he paid a
Id. at ¶¶ 119-143.
Kane brings claims pursuant to 42 U.S.C. §§ 1983, 1985, and
1986, primarily alleging that defendants violated his First and
Fourteenth Amendment rights in the way they handled his tax
He also alleges violations of his Eighth and
Thirteenth Amendment rights.
Kane asks that the individual
defendants be removed from office, seeks a million dollars in
damages from each of the individual defendants, seeks an
additional 10 million dollars from Olson, and seeks 40 million
dollars from the town.
He also asks that the court order
criminal charges to be brought against the individual defendants
for violating his rights.
As explained in the court’s order granting defendants’
motion to dismiss the original complaint, see doc. no. 50, Kane
was granted leave to file an amended complaint raising claims
that do not challenge the validity of the New Ipswich tax
assessment and collection process, if any such claims exist.
Defendants move to dismiss the amended complaint, arguing that,
like Kane’s original complaint, the amended complaint again
challenges the town’s tax assessment and collection process so
that the claims are barred by the TIA and fail to state any
In response, Kane contends that he
carefully complied with the court’s requirement that his new
claims not challenge the validity of the town’s tax assessment
and collection process.
Kane does not appear to directly challenge the town’s tax
assessment and collection process in his amended complaint.
does, however, seek the immediate removal of the individual
defendants from public office and requests that criminal charges
be brought against the individual defendants.
at ¶ 1.
See doc. no. 51
In that way, Kane seeks to interfere with the town’s
ability to collect taxes, which necessarily deprives this court
of jurisdiction over Kane’s claims under the TIA.
Burns v. Conley, 526 F. Supp. 2d 235, 240 (D.R.I. 2007) (noting
that the Supreme Court’s holding in Hibbs v. Winn, 542 U.S. 88
(2004), made clear that the TIA reaches cases “where the
taxpayer intends to frustrate the collection of state tax
Further, as explained by defendants, Kane has not
identified any constitutional duty on the part of the town and
its officials to respond to his protest letters in a certain
While Kane clearly alleges that the town’s responses
and lack of responses to his letters and protests hurt his
feelings and made him angry, he has not alleged a constitutional
Therefore, to the extent his claims are not barred
by the TIA, Kane fails to state a cognizable claim under
sections 1983, 1985, or 1986.
One of the counts in the amended complaint arises out of an
interaction other than Kane’s protests over the town’s authority
to collect and assess his taxes.
Kane’s claim against Olson
(Count VII) arises from their interaction in August 2015.
had previously sent the town a letter in which he asserted his
constitutional right not to pay property taxes because his
property was a “household utensil.”
When the town did not
respond to his letter, he went to the town office to discuss his
property tax bill.
Based on Kane’s description of the events in the amended
complaint, he behaved in an unruly and intimidating manner.
doc. no. 51 at ¶¶ 119-143.
He alleges that Olson called the
town police because of his behavior.
Although the police
Specifically, Kane alleges that defendants’ responses and
lack thereof to his challenges to the town’s authority to assess
and collect his taxes “deprived [him] of intangible property
such as [his] thoughts; family relationships, time spent
preoccupied with perceived injustice resulting from the
defendants’ actions and lack of actions; and other intangibles.”
Doc. no. 51 at ¶ 32.
responded to Olson’s call, Kane was unaware of their presence
until he concluded his business with Olson.
He only spoke to a
police officer after he left the town office, and Kane reports
that nothing out of the ordinary occurred.
As such, the
incident with Olson does not support any claim that Olson
violated Kane’s constitutional rights.
For the foregoing reasons, defendants’ motion to dismiss
(doc. no. 54) is granted.
Plaintiff’s claims alleged in the
amended complaint, which superseded the original complaint, are
dismissed with prejudice.
The clerk of court shall enter judgment accordingly and
close the case.
United States District Judge
January 5, 2017
Michael P. Courtney, Esq.
Russell F. Hilliard, Esq.
Michael Kane, pro se
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