Kane v. New Ipswich, NH, Town of et al
ORDER denying 68 Motion for Reconsideration re: 66 Order on Motion to Dismiss for Failure to State a Claim. 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 030
Town of New Ipswich, et al.
O R D E R
Michael Kane moves for reconsideration of the court’s order
granting defendants’ motion to dismiss his amended complaint
(doc. no. 66).
In support, Kane contends that the court’s order
is “manifestly wrong and in error” because the Tax Injunction
Act (“TIA”), 28 U.S.C. § 1341, does not apply to his claims and
because he states cognizable constitutional claims.
object to the motion for reconsideration.
Standard of Review
“The granting of a motion for reconsideration is an
extraordinary remedy which should be used sparingly.”
Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006) (internal
quotation marks and citation omitted).
To succeed, a party
moving for reconsideration must show a “manifest error of law or
newly discovered evidence” or that the court “has patently
misunderstood a party.”
Ruiz Rivera v. Pfizer Pharms., LLC, 521
F.3d 76, 82 (1st Cir. 2008).
A motion for reconsideration
cannot be used, however, to advance arguments that could or
should have been raised before judgment was entered.
States v. Zimny, --- F.3d ---, 2017 WL 344976, at *7 (1st Cir.
Jan. 24, 2017).
In his initial complaint (doc. no. 1), Kane alleged that
his property located in New Ipswich, New Hampshire, was a
“household utensil” which was exempt from property tax pursuant
to RSA 80:9.
Defendants moved to dismiss the complaint as
barred by the TIA.
The court granted the motion to dismiss but
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
Kane filed a fifty-seven page amended complaint in which he
brought fifteen civil rights claims pursuant to 42 U.S.C. §§
1983, 1985, and 1986 (doc. no. 51).
In the amended complaint,
Kane alleges that defendants violated his Fourteenth Amendment
rights and retaliated against him in violation of his First
Amendment right to free speech by failing to adequately answer
his questions about his property taxes and respond to his
protests that the imposition of property taxes was a violation
of his constitutional rights.
Kane found that the responses
provided to him and defendants’ failure to provide responses
were “extremely insulting, unprofessional and an intentional
slap in the face.”
Doc. no. 51 at ¶ 56.
Kane alleges that the town’s attorney’s letters to him to
explain the taxes assessed and to explain that he had not sought
information under the “Right to Know” law were “outrageous” and
“served no purpose other than to outrage me by insisting that
the amount [of taxes] demanded by the Town, which I repeatedly
and lengthily claimed to be fraud, was an ‘amount due.’”
Kane alleges that the chairman of the town’s board of
selectmen, who is a defendant, hired the attorney and “directed
him to blow me off, rather than answer my questions, in
retaliation for my past exercises of First Amendment free speech
challenging his authority and implying he had no authority over
Id. at ¶ 76.
Kane states that “[i]rrespective of the
validity of the tax that was collected by the Town of New
Ipswich, the conduct of the Town and its attorney regarding my
questions, by responding with snarky word games and/or failing
to respond at all to my serious concerns, was unjust,
discourteous, and shocking to the conscience” in violation of
his Fourteenth Amendment rights.1
Id. at ¶ 67.
Kane alleges that members of the board of assessors were
aware of his protests in opposition to property taxes and his
challenges to the validity of those taxes.
He contends that
those defendants violated his Fourteenth and First Amendment
rights by failing to respond to his tax protests and challenges.
He alleges that he suffered emotional anguish because his
protests were ignored, which chilled his efforts due to a
feeling of powerlessness.
He also alleges that defendants
conspired to retaliate against his First Amendment rights by
hiring an attorney and by failing to properly respond to his
Kane brings a separate claim against Jessica Olson based on
her notice to him of an impending tax deed and his interaction
with her on August 26, 2015, the deadline provided in the
Kane alleges that the notice of an impending tax deed
was intended to “snub and outrage me, which it did.”
Id. at ¶
Kane sent a letter about the notice but did not receive a
Neither the town nor the town’s attorney is a defendant in
this suit. Although Count III refers to the town, Kane did not
list the town as a defendant in the complaint and states that
all claims are brought against the individual defendants
response, “again slapping me in the face by ignoring my beliefs
of my rights being violated.”
Id. at ¶ 123.
On the deadline for paying his property taxes, August 26,
2015, Kane appeared at the tax collector’s window in the town
Olson asked if she could help him, which upset Kane
because she did not acknowledge that she knew him, despite all
of his protest letters.
Kane called his payment an extortion
fee, rather than payment of property taxes due.
with his explanation.
Kane insisted on a receipt before he
tendered the money, and began to toss bundles of money on the
Olson said that she felt threatened.
Unbeknownst to Kane,
Olson called the police who responded and were present in the
office while Kane completed payment of his taxes.
the police officers after he left the counter.
appeared to be calm, no further interaction with the police
Kane alleges, nevertheless, that Olson attempted to “cause
[the police] to kill or otherwise injure me, or to remove me
from the town office” and “prevent me from paying my taxes so
she could use the statutory tax deed process to take my shelter
and extinguish my family.”
Id. at ¶ 136.
additional claims of constitutional violations and conspiracy
based on his theory that defendants violated his rights by
instigating the incident with Olson and by ignoring his tax
For relief, Kane states that he requires the eight
individual defendants, whom he alleges are town officials
involved in tax assessment and collection, “be immediately
removed and/or prohibited from holding any and all government
employment or offices, Federal, State, and Local, now and in the
Id. at 51 of 57.
He also demands compensatory
damages of one million dollars from each of the defendants and
an additional 10 million dollars from Jessica Olson, whom he
alleges is the town clerk and tax collector.2
The court granted defendants’ motion to dismiss the amended
complaint on the grounds that the claims were barred by the TIA
and that Kane failed to state any actionable civil rights
See doc. no. 66.
In support of his motion for reconsideration, Kane argues
that the court improperly applied the TIA to bar his claims and
that “[t]he facts and evidence currently within the record of
this case do prove my claims when properly noticed, interpreted,
Kane also seeks 40 million dollars from the town.
Doc. no. 68 at 2.
Kane contends that the court
misunderstood his factual allegations.
Defendants object to the
motion, arguing that the court properly decided that Kane’s
requested relief of removing defendants from their town offices
would disrupt the town’s tax collection process and that Kane
did not identify a constitutional right requiring defendants to
respond to his tax protests in a particular way.
Kane contends that the Supreme Court narrowed the scope of
the TIA in Direct Marketing Ass’n v. Brohl, 135 S. Ct. 1124
(2015), so that the court erred in concluding that his claims
were barred by the TIA because of the relief he was seeking.
Direct Marketing, the plaintiff challenged a Colorado law that
required retailers who did not collect state use taxes to notify
their customers of their “use-tax liability” and to report that
tax information to the customers and the state.4
135 S. Ct. at
The Court noted that the TIA applies to the assessment,
Kane further states that “[t]his court’s order has shocked
me so greatly that 12 days after, I still can barely compose
myself and my thoughts enough to address this Court’s errors of
my facts.” Doc. no. 68 at 2. He asserts that the order has
caused him emotional distress of the same kind that defendants
Use taxes are “the equivalent of sales taxes for out-ofstate purchases.” Direct Marketing, 135 S. Ct. at 1134
(Kennedy, J., concurring).
levy, or collection of taxes and concluded that gathering
information related to taxes was a procedure that preceded
assessment, levy, and collection of taxes.
Id. at 1129-30.
Court rejected the lower court’s broad interpretation of the TIA
as barring all acts that inhibit taxation.
Id. at 1132-33.
Court held that, as a result, Colorado’s law requiring notice
and reporting of tax information did not implicate the TIA.
Here, however, Kane sought an order that would remove the
town’s employees and officers who assess, collect, and levy
taxes for the town.
Such an order would “restrict or stop
official action” of tax assessment, collection, and levy, at
least until new employees and officers could replace those who
See Direct Marketing, 135 S. Ct. at 1132.
Therefore, because of the relief requested, Kane’s claims are
barred by the TIA.
Civil Rights Claims
As explained in the court’s order granting defendants’
motion to dismiss, even if the claims were not barred by the
TIA, they would be dismissed for failure to state cognizable
civil rights claims.
Kane’s claims are that defendants failed
to respond to his tax protests and letters in a manner that he
He did not identify any constitutional right
to receive particular responses from the town or its officers.
The circumstances that Kane describes do not violate the
Fourteenth Amendment’s procedural or substantive due process
To state a due process claim, a plaintiff
generally must assert facts showing that he has suffered a
deprivation of a protected interest in life, liberty, or
See Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 541-42 (1985) (elements of procedural due process); Mathews
v. Eldridge, 424 U.S. 319, 333 (1976) (same); Cty. of Sacramento
v. Lewis, 523 U.S. 833, 845-47 (1998) (elements of substantive
due process); Gonzalez-Fuentes v. Molina, 607 F.3d 864, 880 n.13
(1st Cir. 2010) (noting that action does not infringe
substantive due process unless it deprives an individual of a
Kane does not allege such a deprivation in
his amended complaint.
Nor has Kane alleged facts to support an equal protection
To establish an equal protection claim, a plaintiff
generally must demonstrate that, (1) compared with others
similarly situated, he was selectively treated, and (2) that the
selective treatment was motivated by purposeful discrimination
on some improper basis, such as plaintiff’s membership in a
particular race or religion.
See Macone v. Town of Wakefield,
277 F.3d 1, 10 (1st Cir. 2002).
Although Kane states that he
was not treated as nicely as others who objected to their
property taxes, he provides no specific factual support for that
conclusion and alleges no facts to show that he was treated
differently from others, who were similarly situated, based on
race or another impermissible reason.
See Lopera v. Town of
Coventry, 640 F.3d 388, 402 (1st Cir. 2011).
Kane also does not
allege facts to support an equal protection claim based on a
“class of one.”
See Engquist v. Oregon Dep’t of Agric., 553
U.S. 591, 602-09 (2008).
Kane claims that defendants violated his right to free
speech under the First Amendment and retaliated against him for
exercising his First Amendment right.
Kane alleges that
defendants did not like him because of his tax protests and
inflicted emotional distress on him by their responses and lack
of response to his tax protests and letters.
He provides no
facts, however, that suggest defendants took any action against
him in reprisal for his tax protests which inhibited his free
Instead, Kane alleges that despite the responses he
received, or the lack of response, he continued to challenge the
town’s property taxes as unconstitutional and continued to
assert that his home is a “household utensil” that is not
subject to property tax and that property taxes are fraudulent
and constitute extortion fees.
In the absence of any inhibition
or chilling effect on Kane’s right to free speech, he has not
alleged a First Amendment violation.
See United States v.
Alvarez, 132 S. Ct. 2537, 2543-51 (2012) (discussing generally
First Amendment speech protection); Mattei v. Dunbar, --- F.
Supp. 3d. ---, 2016 WL 6634871, at *3-*4 (D. Mass. Nov. 8,
Kane provides no grounds for reconsideration of the court’s
order that granted defendants’ motion to dismiss.
For the foregoing reasons, plaintiff’s motion for
reconsideration (doc. no. 68) is denied.
United States District Judge
February 21, 2017
Michael Kane, pro se
Michael P. Courtney, Esq.
Russell F. Hilliard, Esq.
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