Every et al v. Littleton, NH, Town of et al

Filing 9

///ORDER granting 6 Motion to Dismiss. Plaintiff has 30 days to file a Motion for Leave to file an amended complaint as set forth therein. So Ordered by Judge Steven J. McAuliffe. (lml)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Robert Every,
Plaintiff
v.

Case No. 18-cv-43-SM
Opinion No. 2018 DNH 183

Town of Littleton, New Hampshire;
Andrew Dorsett, Town Manager;
Milton Bratz, Selectman;
Schuyler Sweet, Selectman;
Edward Hennessey, Former Selectman;
Paul Smith, Chief of Police;
Stephen Cox, Detective Sergeant; and
George McNamara, Public Works Director,
Defendants

O R D E R
Pro se plaintiff, Robert Every, brings this action against
the Town of Littleton, New Hampshire, as well as several town
officials in their official capacities.

He alleges that the

defendants, either individually or collectively, violated his
“protections under the Fourth, Fifth, Sixth, and Fourteenth
Amendments.”

Compl. ¶ 1.

Every also advances common law claims

for false arrest, malicious prosecution, and libel.

Id.

Defendants move to dismiss all of plaintiff’s claims, asserting
that none states a viable cause of action.
R. Civ. P. 12(b)(6).

Every objects.

See generally Fed.

For the reasons discussed, defendants’ motion to dismiss is
granted, but Every is afforded leave to file an amended
complaint as to some of his claims, if he can do so in good
faith.

Standard of Review
When ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the court must “accept as true all well-pleaded facts
set out in the complaint and indulge all reasonable inferences
in favor of the pleader.”
(1st Cir. 2010).

SEC v. Tambone, 597 F.3d 436, 441

Although the complaint need only contain “a

short and plain statement of the claim showing that the pleader
is entitled to relief,” Fed. R. Civ. P. 8(a)(2), it must allege
each of the essential elements of a viable cause of action and
“contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citation and internal
punctuation omitted).

The “plausibility” standard is satisfied

if the factual allegations in the complaint, along with
reasonable inferences, show more than a mere possibility of
liability.

Walbridge v. Northeast Credit Union, 299 F. Supp. 3d

338, 342 (D.N.H. 2018) (citing Germanowski v. Harris, 854 F.3d
68, 71 (1st Cir. 2017)).

2

Generally, a court must decide a motion to dismiss
exclusively upon the allegations set forth in the complaint and
the documents specifically attached, or convert the motion into
one for summary judgment.

See Fed. R. Civ. P. 12(2).

There is,

however, an exception to that general rule, as “[a] district
court may also consider ‘documents incorporated by reference in
[the complaint], matters of public record, and other matters
susceptible to judicial notice.’”

Giragosian v. Ryan, 547 F.3d

59, 65 (1st Cir. 2008) (quoting In re Colonial Mortgage Bankers
Corp., 324 F.3d 12, 20 (1st Cir. 2003)) (alterations in
original).

Both parties have previously litigated issues related to
this suit.

Plaintiff references those state court cases in his

complaint, and defendants have submitted filings and orders from
those prior actions in support of their motion.

Documents from

prior state court adjudications are ordinarily considered
“[m]atters of public record.”

Giragosian, 547 F.3d at 65

(citing Boateng v. InterAmerican Univ., Inc., 210 F.3d 56, 60
(1st Cir. 2000)).

And, neither party objects to the court’s

consideration of these records.

Accordingly, the court may

consider them without converting defendants’ motion into one for
summary judgment.

3

Background
Accepting the factual allegations of the complaint as true
- as the court must at this juncture - the relevant background
is as follows.

Every is the president of the Esterhill Boat

Service Corporation.

That corporation owns a building on Meadow

Street in Littleton, New Hampshire, out of which two businesses
operate: Asian Garden and Bagel Depot.

Every does not have an

ownership interest in either business.

During much of the time relevant to this proceeding, the
Asian Garden held a wastewater permit, as required by the town’s
local ordinance (that permit, it seems, relates to the
restaurant’s use of the town’s sewer system and apparently
relates in some way to its use of grease traps in its drains,
which are designed to minimize introduction of grease into the
sewer system).

The other business - Bagel Depot - did not have

a wastewater permit (something Every says he repeatedly told
town officials about).

According to Every, he has never

personally had (or been required to have) a wastewater permit,
since he does not own the building, nor does he occupy it, nor
does he make any discharges into the town sewer system.

At some unspecified time, the town began having problems
with its sewer system.

Despite far larger retail businesses in

town that also discharged waste water into the public sewer
4

system (e.g., McDonalds, Applebee’s, 99 Restaurant, and WalMart), Every says the town targeted the building owned by
Esterhill Boat Service Corporation as a potential source of the
sewer problems.

Every asserts that the property was targeted at

least in part because Chief of Police Paul Smith held a personal
grudge against him, one arising from an incident that occurred
many years ago.

When Every learned of the enforcement action,

he says he wrote a letter to the town selectmen and a number of
town officials, asking for a meeting, so he might explain the
situation and address the town’s concerns.

That letter was

ignored, as were Every’s follow-up efforts to meet with town
officials.

Shortly thereafter, a newspaper printed a front-page

article that (incorrectly) identified Every as the owner of the
building and falsely stated that he was responsible for the
town’s sewer problems.

Similar articles portraying Every in a

negative light soon followed in other newspapers owned by the
same publishing entity.

Every suspects that one or more town

officials provided the newspaper with the false information upon
which the original article, as well as those that followed, were
based.

Every claims that the town knew that the Meadow Street
building was owned by the corporation, Esterhill Boat Service,
rather than Every personally.

See Pl.’s Obj. to Mot. to

5

Dismiss, Exhibit C, Letter from Town of Littleton (document no.
8-1) at 3.

Nevertheless, in July of 2016, Every was criminally

charged with some sort of illegal conduct relating to the grease
traps in the Meadow Street building and/or wastewater discharge
from that building into the town’s sewer system (the complaint
is woefully unclear on this point, but according to Every, he
was “charged under the sewer ordinance”).

In any event, shortly after Every was charged, the
Littleton Police Department sought and obtained a warrant to
inspect the grease traps at the Asian Garden and Bagel Depot.
Every says there are at least two problems with that search
warrant.

First, he says Chief Smith and/or Detective Stephen

Cox (it is difficult to tell from the complaint) knowingly lied
in the affidavit supporting issuance of the warrant.

It was

falsely represented, Every says, that (a) Every owns the
building, and (b) that Every held an “Industrial Discharge Class
III Permit.”

Neither statement is true.

And, says Every, Smith

and Cox knew or should have known those statements were false.
Second, Every says Detective Cox exceeded the scope of the
warrant when he searched an area not covered by the warrant: the
pump chamber in the building’s utility room (an area of the

6

building inaccessible from either the area leased by the Asian
Garden or Bagel Depot).

As part of the preparation of his defense, Every sought
production from the town of certain public records relating to
the town’s sewer system and the businesses connected to it.

In

particular, Every sought the “permits and sewer plans for
McDonald’s, which is across the street” from the subject
building.

State Court Compl. (document no. 6-2) at ¶ 5.

His

request for copies of public documents was denied, on what Every
asserts were legally questionable grounds.

According to Every,

town officials refused to honor his request for those public
documents, citing his forthcoming criminal trial.

Those town

officials told Every they had been instructed to inform Every
that they would not release those public documents to him and,
instead, he would have to make a formal discovery request for
those documents from the criminal prosecutor. 1

Every’s criminal case proceeded to trial.

After the

prosecution rested, the presiding judge promptly entered a
judgment of acquittal as a matter of law.

Thereafter, pursuant

to N.H. Rev. Stat. Ann. 91-A, Every filed a “Right-to-Know”

1

Every says he made such a discovery request, but the
prosecutor refused to produce the documents he sought. And,
when he sought judicial assistance, Every’s motion to compel
discovery was denied (probably on relevance grounds).
7

action against the Town of Littleton in Grafton Superior Court.
On page two of his complaint, Every summarized his claims as
follows: “This case is focused on two items: the denial of
public records and [the] failure [of town officials] to comply
with open meeting requirements [imposed by RSA 91-A.]”
Court Compl. (document no. 6-2) at ¶ 4.

State

It is, however, not

entirely clear what relief he sought in that action.

He may

have been seeking copies of the documents related to the
McDonald’s restaurant’s sewer permits and connections.
Request for Discovery (document no. 6-2) at 27.

See

What is clear,

however, is that Every wanted the court to impose civil fines on
town officials for having acted in bad faith when they refused
his request for public documents.

See RSA 91-A:8.

In April of 2017, the trial court dismissed Every’s Chapter
91-A action, holding that the town officials were not obligated
to honor Every’s request.

Specifically, the court held that

because the public records Every sought “were anticipated to be
used to defend the plaintiff in his criminal case, the Littleton
officials acted appropriately in referring the plaintiff’s
request to the Town Prosecutor.”

Order on Motion to Dismiss

(document no. 6-3) (the “Grafton County Court Order”) at 5.
does not appear that Every appealed that decision.

8

It

For purposes

of this suit, the substantive legal merits of that ruling,
however doubtful, are not important.

In January of 2018, Every filed this case against the Town
of Littleton and several town officials (in their official
capacities).

As noted above, defendants now move to dismiss all

of Every’s claims.

Every’s pro se complaint does not enumerate specific
counts, as is generally expected.

Instead, the complaint states

that the case is based upon constitutional violations of the
Fourth, Fifth, Sixth, and Fourteenth Amendments; state law
claims of false arrest, malicious prosecution and libel; as well
as violations of Title 18 U.S.C. §§ 241-242.

Every’s claims

generally relate to three events: the search of the Meadow
Street building; the filing of criminal charges against Every
for violation of a town ordinance; and Every’s Right to Know Law
requests for the town’s sewer records.

Read liberally, as it must be, the complaint asserts the
following federal claims: (i) violation of the Fifth and
Fourteenth Amendment (based on Littleton’s refusal to release
publicly available sewer records to Every, and singling Every
out for enforcement action); (ii) violation of the Sixth
Amendment (based on Littleton’s refusal to release publicly

9

available sewer records to Every during the criminal discovery
process); (iii) violation of the Fourth Amendment (based on
Littleton police officers’ false statements to procure a warrant
to search the Meadow Street building, and the officers exceeding
the scope of the warrant, and malicious prosecution); and (iv)
violation of 18 U.S.C. §§ 241-242 (based on Littleton’s agents
entering into a civil conspiracy to injure, oppress, and
intimidate Every under color of law).

Every also asserts state

law claims for false arrest, libel and malicious prosecution.

Discussion
1.

Rooker Feldman Doctrine
A.

Right to Know Request

First, to the extent plaintiff’s claims challenge the
Grafton County Court judgment in his Chapter 91-A, Right to Know
Law case, this court is without subject matter jurisdiction to
address such claims.

That is because the “Rooker–Feldman

doctrine precludes federal jurisdiction over a challenge to a
state court judgment to which the challenger was a party.”
Miller v. Nichols, 586 F.3d 53, 59 (1st Cir. 2009) (citations
omitted).

Under Rooker–Feldman, a federal district court generally
cannot review a state court’s final judgment, however suspect it
might be.

See Lance v. Dennis, 546 U.S. 459, 463 (2006) (under
10

Rooker–Feldman doctrine, federal district “courts are precluded
from exercising appellate jurisdiction over final state-court
judgments”); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416
(1923).

The doctrine applies to cases where “the losing party

in state court filed suit in federal court after the state
proceedings ended, complaining of an injury caused by the statecourt judgment and seeking review and rejection of that
judgment.”

Galibois v. Fisher, 174 Fed. Appx. 579, 580 (1st

Cir. 2006) (quoting Exxon Mobil Corp. v. Saudi Basic Indus., 544
U.S. 280, 291 (2005)). However, “if the plaintiff alleges a
constitutional violation by an adverse party independent of the
injury caused by the state court judgment, the doctrine does not
bar jurisdiction.”

Davison v. Gov't of Puerto Rico - Puerto

Rico Firefighters Corps., 471 F.3d 220, 222 (1st Cir. 2006)
(citations omitted).

Rooker–Feldman also forecloses federal court jurisdiction
over claims that are inextricably intertwined with claims
adjudicated in a state court proceeding.
207 F.3d 35, 40 (1st Cir. 2000).

See Sheehan v. Marr,

“A federal claim is

inextricably intertwined with the state court claims ‘if the
federal claim succeeds only to the extent that the state court
wrongly decided the issues before it.’”

11

Sheehan, 207 F.3d at 40

(quoting Hill v. Town of Conway, 193 F.3d 33, 39 (1st Cir.
1999)).

Here, Every complains that the state court’s dismissal of
his Chapter 91-A “right to know” suit was in error, and that
“[the] Grafton ruling infringes on federal rights protected by
the Fifth, Sixth and Fourteenth Amendments.”
to Dismiss (Document 8) at 9.

Pl.’s Obj. to Mot.

That is precisely the sort of

direct attack on a state court judgment Rooker-Feldman precludes
the court from considering.
284.

See Exxon Mobil Corp., 544 U.S. at

The remedy, if any, lies in appealing the state judgment

through the state system and, if necessary, eventually to the
United States Supreme Court.

Every also takes issue with the town’s refusal to provide
records to criminal defendants by claiming that his right to
equal protection was violated because “he was treated
differently from everyone else as any other person in the United
States could look at them.” 2

Compl. ¶ 14.

For Every to prevail

on such a claim, this court would have to find that the

2

To the extent Every is attempting to allege that the Right
to Know law itself is unconstitutional, his complaint falls
short. Every’s factual allegations pertain only to the town’s
application of the Right to Know law to his request, and why the
town’s application was unconstitutional. His complaint does not
sufficiently allege a general, facial challenge to the
constitutionality of New Hampshire’s Right to Know law.
12

requested records were, in fact, publicly available under RSA
Chapter 91-A, but were impermissibly withheld from Every, in
violation of the Right to Know law.

But, the state court

unambiguously held that “town officials did not violate RSA
chapter 91-A by refusing to process [Every’s] request for
records” because Every was a criminal defendant at the time, and
Chapter 91-A cannot serve as a substitute for criminal
procedures.

Def. Ex. B (Document 6-3) at 4.

Thus, to find that

the town violated the equal protection clause by withholding the
sewer records, the court would have to reject the state court’s
determination that the town permissibly withheld the sewer
records.

“Where federal relief can only be predicated upon a
conviction that the state court was wrong, it is difficult to
conceive the federal proceeding as, in substance, anything other
than a prohibited appeal of the state-court judgment.”

Hill v.

Conway, 193 F.3d 33, 39 (1st Cir. 1999) (quoting Pennzoil Co. v.
Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring)).
Because Every’s claims involving his Right to Know request would
effectively function as a de facto appeal of the state court’s
judgment, this court lacks jurisdiction under Rooker-Feldman.

13

Every’s claims arising out of his Chapter 91-A request are
subject to dismissal on that basis. 3

B.

State Court Criminal Discovery

Every’s related claims, based upon defendants’ refusal to
provide the public sewer records during the criminal discovery
process, are similarly problematic.

Every says that, by “not

releasing public sewer records and refusing to provide them
under discovery, the Littleton Police Department, . . . the
Littleton Police Prosecutor, . . . and other Littleton
officials” “deprived [him] of the right to exculpatory material
in a criminal case in violation of constitutionally mandated
protections under the Sixth Amendment.”

Compl. ¶ 18.

Every’s

complaint also alleges, however, that defendants’ refusal to
produce the records in the course of criminal discovery was

3

Defendants argue that Every’s claims relating to his
Chapter 91-A request are also barred by the doctrine of res
judicata. Under New Hampshire law, “[r]es judicata precludes
the litigation in a later case of matters actually decided, and
matters that could have been litigated, in an earlier action
between the same parties for the same cause of action.” Brooks
v. Trustees of Dartmouth College, 161 N.H. 685, 690 (2011)
(citation omitted). While defendants may well be correct, the
court need not reach the argument, having concluded that Every’s
claims are barred by Rooker-Feldman.
14

actually adjudicated in the criminal case, and that the state
court judge ruled on that very issue.

See Compl. ¶¶ 16-17.

Thus, whether Every was entitled to the records in the
criminal discovery process is an issue that has been finally
determined by the state court judge who presided over Every’s
criminal trial.

While couched as claims challenging the

defendants’ conduct in the criminal discovery process, Every’s
claims actually challenge the state court’s determination that
he was not entitled to the records as part of discovery.

In

other words, Every’s asserted injury (the denial of records he
contends were necessary for his defense) was caused by the state
court’s ruling that denied access to those records.

(It does

not seem readily apparent how those requested records would have
been relevant to any cognizable defense, but, again, what
matters is that the issue was raised and decided by a state
court of competent jurisdiction.)

By asking this court to rule that he was entitled to the
records as part of the state criminal discovery process, Every,
in reality, is asking this court to “review and reject” the
state court’s determination that he was not entitled to the
records.

Davison, 471 F.3d at 223 (“Rooker–Feldman squarely

applies when a plaintiff insists that we must review and reject
a final state court judgment.”).
15

For that reason, the court

lacks jurisdiction to hear those claims under Rooker-Feldman as
well.

2.

Standing: Illegal Search of the Meadow Street Building
With respect to plaintiff’s Fourth Amendment claims arising

out of the search of the Meadow Street building, defendants
argue that, because plaintiff asserts that he is not the owner
of the building and has no meaningful presence there, he lacks
standing to bring claims arising out of the building’s search.

“The Fourth Amendment protects ‘[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.’”

Carpenter v.

United States, 138 S. Ct. 2206, 2213 (2018) (quoting Camara v.
Municipal Court of San Francisco, 387 U.S. 523, 528 (1967)).
The ”Fourth Amendment protects people, not places,” Katz v.
United States, 389 U.S. 347, 351 (1967), and “Fourth Amendment
rights are personal rights, which . . . may not be vicariously
asserted.”

Rakas v. Illinois, 439 U.S. 128, 133-134 (1978)

(quoting Alderman v. United States, 394 U.S. 165, 174 (1969))
(citations omitted).

“The Fourth Amendment's protection against unreasonable
searches and seizures extends only to those places and interests
in which the [individual] has a reasonable expectation of

16

privacy.”

United States v. Lewis, 40 F.3d 1325, 1333 (1st Cir.

1994) (citing United States v. Cruz Jiménez, 894 F.2d 1, 5 (1st
Cir. 1990)) (further citations omitted).

“Such an expectation

of privacy is a threshold standing requirement that a [party]
must establish before a court can proceed with any Fourth
Amendment analysis.” 4

Id.

(citations omitted).

“The Fourth

Amendment’s standing principle is embodied in the requirement
that a party claiming a Fourth Amendment violation must
demonstrate that he, and not someone else, had a legitimate
expectation of privacy in the area or thing searched.”

Berry v.

FBI, et al., No. 17-CV-143-LM, 2018 WL 3468703, at *5 (D.N.H.
July 17, 2018) (citing Byrd v. United States, 138 S. Ct. 1518,
1526 (2018)).

Therefore, in order to sufficiently allege a

Fourth Amendment violation, Every must allege facts making it
plausible that he personally had a “legitimate expectation of
privacy” in the Meadow Street building and, more specifically,
the utility room.

United States v. Collins, 811 F.3d 63, 65

(1st Cir. 2016) (citing Sanchez, 943 F.2d at 112) (additional
citations omitted)).

4

As our court of appeals has explained, the term “standing”
is used “somewhat imprecisely” in this context to refer to a
“threshold substantive determination” of a defendant’s
“legitimate expectation of privacy as a prerequisite to
challenging assertedly unlawful police conduct.” United States
v. Sanchez, 943 F.2d 110, 113 n.1 (1st Cir. 1991).
17

The court examines several factors to determine if a
reasonable expectation of privacy exists, namely:
ownership, possession, and/or control; historical use
of the property searched or the thing seized; ability
to regulate access; the totality of the surrounding
circumstances; the existence or nonexistence of a
subjective anticipation of privacy; and the objective
reasonableness of such an expectancy under the facts
of a given case.
Sanchez, 943 F.2d at 113 (quoting United States v. Aguirre, 839
F.2d 854, 856-57 (1st Cir. 1988)).

Given the allegations in his complaint, it is plain that
Every is attempting, as an individual, to vicariously assert the
Fourth Amendment rights of the Esterhill Boat Service
Corporation, the corporate owner of the building, and/or the
tenants who occupy that building.

Every explicitly disclaims

ownership of the building, and asserts that he has “no presence”
there.

See e.g., Compl. at ¶¶ 5, 10.

To the extent he is

trying to assert a proprietary interest in the premises (through
the Esterhill Corporation), he does not actually state that he
has an ownership stake, or the extent of it, in that
corporation. 5

See generally Compl. at ¶ 5.

5

With respect to the

Even if Every had alleged his status as a shareholder of
the corporation, that allegation, absent some “personal
connection to the places searched and the materials seized,”
would likely be insufficient. United States v. Nagle, 803 F.3d
167, 178 (3d Cir. 2015) (citing United States v. SDI Future
Health, Inc., 568 F.3d 684, 698 (9th Cir. 2009)). See also
18

building’s utility room, more specifically, Every alleges that
the room is not accessible to the business tenants, but does not
allege his own exclusive control of the space.

While the

complaint and its attachments suggest that Every occasionally
visits the utility room, he does not claim to use the space to
store personal records or effects as one would in an office.

Upon consideration of the relevant factors, the court finds
that Every’s allegations fall short of sufficiently establishing
that he had a reasonable expectation of privacy in the utility
room, especially given his allegations that he has no personal
presence in the Meadow Street building.

Cf. United States v.

Mancini, 8 F.3d 104, 1110 (1st Cir. 1993) (defendant’s actions
demonstrate an expectation of privacy where his “clearly
labeled” documents were stored in city archive, “segregated from

United States v. Moscatiello, 771 F.2d 589 (1st Cir. 1985),
vacated on other grounds sub. nom., Carter v. United States, 476
U.S. 1138 (1986) (co-defendants had a reasonable expectation of
privacy in a warehouse owned by a corporation where they had
contributed the capital to acquire the premises and were the
sole shareholders in the corporation; only the defendants
possessed keys to the premises, which was kept locked; and
defendants kept personal property on the premises.); Williams v.
Kunze, 806 F.2d 594, 599 (5th Cir. 1986) (“An individual's
status as the sole shareholder of a corporation is not always
sufficient to confer upon him standing to assert the
corporation's fourth amendment rights. Unless the shareholder,
officer or employee can demonstrate a legitimate and reasonable
expectation of privacy in the records seized, he lacks standing
to challenge the search and seizure.”) (citing United States v.
Britt, 508 F.2d 1052, 1055 (5th Cir. 1975)).
19

other items in the secured city archives, located upstairs “in
the very building in which [defendant] worked throughout his
tenure in political office,” and defendant “took steps to assure
that no one would have access to his files without his prior
authorization”); United States v. Novak, No. 13 CR 312, 2015 WL
720970, at *5-7 (N.D. Ill. Feb. 18, 2015) (holding that
president of hospital

-- who also owned the corporations that

owned the hospital building -- had a reasonable expectation of
privacy in his office suite, but not other areas of hospital
where he did not routinely work and could not “exhibit[] a
personal connection”), aff’d sub. nom. United States v.
Nagelvoort, 856 F.3d 1117 (7th Cir. 2017).

Every’s Fourth Amendment claim arising out of the search of
the Meadow Street building must, then, be dismissed for lack of
standing.

To the extent Every can plausibly and in good faith

assert factual allegations that may demonstrate his standing to
assert such claims, he may timely file a motion to amend his
complaint, as set forth below.

3.

Federal Malicious Prosecution Claim
Defendants next argue that Every’s federal malicious

prosecution claim must be dismissed because Every fails to

20

allege facts sufficient to satisfy the elements of that cause of
action.

The First Circuit has construed the right to be free from
malicious prosecution as falling under the Fourth Amendment’s
“guarantee of freedom from seizure but upon probable cause.” 6
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 100 (1st Cir. 2013).
To advance a claim for unconstitutional malicious prosecution,
Every must allege facts sufficient to establish that (1) he was
seized pursuant to legal process unsupported by probable cause,
and (2) criminal proceedings terminated in his favor.

Id. at

101.

“In a malicious prosecution case brought under Section
1983, ‘the constitutional violation lies in the deprivation of
liberty accompanying the prosecution rather than in the
prosecution itself.’”

Moreno-Medina v. Toledo, 458 Fed. Appx.

6

As the court noted in Hernandez-Cuevas v. Taylor, 723 F.3d
at 98:
[T]he Supreme Court's opinion in Albright v. Oliver, 510
U.S. 266 (1994), firmly closed the door on substantive due
process as a vehicle for bringing such claims. In addition,
at least a plurality of the Justices concluded that
procedural due process would likewise rarely, if ever, be
an appropriate vehicle for such claims. See id. at 283–86,
(Kennedy, J., concurring in the judgment) (concluding that
any procedural due process malicious prosecution claim
would, in most cases, be precluded by the Parratt–Hudson
doctrine).
21

4, 7 (1st Cir. 2012) (quoting Britton v. Maloney, 196 F.3d 24,
29 (1st Cir. 1999)) (further quotations omitted).

Therefore,

“[f]or a state actor to violate the Fourth Amendment by
initiating a malicious prosecution against someone, the criminal
charges at issue must have imposed ‘some deprivation of liberty
consistent with the concept of [a] ‘seizure.’”

Britton, 196

F.3d at 28 (quoting Singer v. Fulton Cty. Sheriff, 63 F.3d 110,
116 (2d Cir. 1995)).

Thus, “[t]he crux of the inquiry is whether a ‘seizure’
occurred.”

Britton, 196 F.3d at 29-30.

The Supreme Court has

stated that a “person is seized whenever officials restrain[ ]
his freedom of movement such that he is not free to leave.”
Manuel v. City of Joliet, 137 S. Ct. 911, 917 (2017) (quoting
Brendlin v. California, 551 U.S. 249, 254 (2007)) (alterations
in original).

So, in order to successfully state a claim, Every

must allege a “deprivation of liberty, caused by the application
of legal process, that approximates a Fourth Amendment seizure.”
Moreno-Medina, 458 Fed. Appx. at 7.

Every alleges that the Littleton Police Department
telephoned to inform him that he would be charged under the Town
Sewer Ordinance, and a New Hampshire State Trooper arrived at
his home to serve him with a summons to appear in court.
at ¶ 1.

Every does not allege that he was detained, or
22

Compl.

arrested, or that his liberty was restricted in any way.

Those

allegations fall short of describing a deprivation of liberty.
The mere issuance of a summons does not constitute a deprivation
of liberty simply because it carries with it the possibility of
confinement if the subject fails to appear in court as directed.
See Britton, 196 F.3d at 30 (1st Cir. 1999) (“the fact that he
was given a date to appear in court is insufficient to establish
a seizure within the meaning of the Fourth Amendment”).

A show

of authority amounts to a “seizure” only when it results in the
“‘intentional acquisition of physical control’ over the subject
and causes a ‘termination of his freedom of movement.’”

Id.

(quoting Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989))
(alterations omitted)).

Because Every has not sufficiently alleged a deprivation
of liberty within the meaning of the Fourth Amendment, he has
not stated a viable Section 1983 claim for malicious
prosecution.

Defendant’s motion to dismiss the federal

malicious prosecution claim is necessarily granted.

To the

extent Every can plausibly and in good faith assert factual
allegations that may support a federal malicious prosecution
claim, he may timely file a motion to amend his complaint as set
forth below.

23

4.

Equal Protection – Class of One
Every’s equal protection claim is premised on the theory

that the town violated his rights by bringing a sewer ordinance
enforcement against him – and only him – when the town was
experiencing sewer issues.

Defendants counter that plaintiff’s

equal protection claim must be dismissed because he has not
plausibly stated a viable claim.

In Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000), the Supreme Court recognized that arbitrary exercises of
power can deprive a “class of one” of equal protection.

To

bring a “class of one” equal protection claim, a plaintiff must
allege that he was “intentionally treated

. . . differently

from others similarly situated and there was no rational basis
for this disparate treatment.”

Najas Realty, LLC v. Seekonk

Water Dist., 821 F.3d 134, 144 (1st Cir. 2016) (citations
omitted).

“[P]laintiffs claiming an equal protection violation

must first identify and relate specific instances where persons
situated similarly in all relevant aspects were treated
differently”.

Cordi-Allen v. Conlon, 494 F.3d 245, 250-51 (1st

Cir. 2007) (quoting Buchanan v. Maine, 469 F.3d 158, 178 (1st
Cir. 2006)) (emphasis in original).

Specific comparators and their similarities must be alleged
with “reasonable particularity” at the Rule 12(b)(6) stage, as
24

“[a]n equal protection claimant ‘may not prevail [against a Rule
12(b)(6) motion] simply by asserting an inequity and tacking on
the self-serving conclusion that the defendant was motivated by
a discriminatory animus.’”

Barrington Cove, LP v. R.I. Housing

and Mortg. Fin. Corp., 246 F.3d 1, 8, 10 (quoting Coyne v.
Somerville 972 F.2d 440, 444 (1st Cir. 1992)).

Ultimately,

“[a]n individual is ‘similarly situated’ to others for equal
protection purposes when ‘a prudent person, looking objectively
at the incidents, would think them roughly equivalent and the
protagonists similarly situated.’”

Davis v. Coakley, 802 F.3d

128, 133 (1st Cir. 2015) (quoting Barrington Cove, 246 F.3d at
8).

In claims such as Every’s, the plaintiff must ordinarily

plead facts that show that the defendants’ “differential
treatment of the plaintiff was motivated by ‘bad faith or
malicious intent to injure.’”

Snyder v. Gaudet, 756 F.3d 30, 34

(1st Cir. 2014) (quoting Rubinovitz v. Rogato, 60 F.3d 906, 911
(1st Cir. 1995)).

Freeman v. Town of Hudson, 714 F.3d 29, 39 (1st Cir. 2013),
is instructive.

In Freeman, plaintiffs argued that their equal

protection rights had been violated when a conservation
commission treated them differently from their neighbors.

Id.

The Court of Appeals for the First Circuit affirmed dismissal of
plaintiffs’ claim, finding that plaintiffs had not sufficiently

25

met the “‘similarly situated’ test.”
Of Willowbrook, 528 U.S. at 564).

Id. at 38 (quoting Vill.

Plaintiffs had alleged that

their neighbor’s property abutted the same protected area, but
the court observed, the similarities ended there.

Id.

Plaintiff’s complaint did not allege that the neighbors were
violating the policy at issue, and the court concluded that
plaintiffs had failed to demonstrate that they were similarly
situated to the neighbors. Id.

In this case, Every has alleged an inequity: questionable
charges were filed against him for sewer violations, while no
charges were filed against other potential violators.
17-18.

Compl. ¶¶

Every further alleges that defendants were acting in bad

faith, seeking a scapegoat for the sewer issues, and that he was
singled out because the police chief harbored a long-standing
grudge against him.

Compl. ¶ 5.

However, as in Freeman, Every fails to allege any facts
tending to show how the comparators he lists in his complaint
were similarly situated to him.

Every’s listed comparators

consist of a few national franchise establishments located in
the area.

Every asserts that these businesses would be “a far

more formidable target than the plaintiff.”

Compl. ¶ 5.

But,

Every’s complaint merely notes that these business exist and are
located near the Meadow Street building.
26

The complaint does not

allege that any of these businesses were also thought to be
violating the sewer ordinance.

Nor is an inference that they

were violating the ordinance plausible given Every’s
allegations, as there is an “obvious alternative explanation”
for those businesses not being charged: they were likely not
violating or not thought to be violating the ordinance.
Ashcroft v. Iqbal, 556 U.S. 662, 682 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 567 (2007)).

Because Every has not alleged facts sufficient to show that
comparably situated people or businesses existed and were
treated in a substantively different manner than he, Every has
not alleged facts sufficient to state a plausible violation of
the equal protection clause.

See Freeman, 714 F.3d at 39.

His

equal protection claim must therefore be dismissed, albeit
without prejudice.

To the extent Every can plausibly and in

good faith assert factual allegations that may support his equal
protection claim, he may timely file a motion to amend his
complaint as set forth below.

5.

Official Capacity: Failure to Allege A Policy, Custom, or
Procedure
In addition to the claim-specific deficiencies addressed

supra, defendants also move to dismiss all of Every’s Section
1983 claims against them because Every names each defendant in

27

his official, not individual, capacity, as an agent of the Town
of Littleton.

Therefore, defendants argue, the town is the sole

accountable defendant for all claims, and, based on Monell v.
Department of Social Services, 436 U.S. 658 (1978), it can be
held liable only if a town policy, custom, or procedure was the
driving force behind Every’s claimed injuries.

Every’s claims

against the town must fail, say defendants, because he has not
invoked any policy, custom or procedure of the town as the
moving force leading to his injuries.

An official-capacity suit is “another way of pleading an
action against an entity of which an officer is an agent.”
Kentucky v. Graham, 473 U.S. 159, 165 (1984).

In Monell, 436

U.S. at 691, the Supreme Court held that a municipal entity
“cannot be held liable solely because it employs a tortfeasor –
or, in other words, a municipality cannot be held liable under §
1983 on a respondeat superior theory.”

Instead, the government

“as an entity is responsible under § 1983,” “when execution of a
government’s policy or custom, whether made by its lawmakers or
by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury.”

Monell, 436 U.S. at 694.

Our court of appeals has added that, “[h]olding the city liable
only if the injury results from an officially sanctioned policy
or custom, exempts the municipality from responsibility for the

28

aberrant and unpredictable behavior of its employees while
making it liable for acts and conduct rightly attributable to
the city.”

Bordanaro v. McLeod, 871 F.2d 1151, 1155 (1st Cir.

1989) (citations omitted).

Every’s complaint does not allege facts that suggest that
an officially sanctioned policy or custom was the “driving
force” behind any of his claimed injuries.

Indeed, in Every’s

objection to defendants’ motion to dismiss, he seemingly
concedes the point, acknowledging that he “rather doubts that
the Littleton Police Department has a policy on how to commit
perjury . . . how to conduct forbidden non-public meetings . . .
or how to deny access to public records.”
Dismiss (Document 8) at 15.

Obj. to Mot. to

However, having determined that

Every’s Section 1983 claims must be dismissed on other bases,
the court need not reach the issue. 7

6.

Federal Criminal Code Claims
Finally, plaintiff’s complaint alleges violations of the

Criminal Code, Title 18 U.S.C §§ 241-242.

As a general matter,

a private citizen has no authority to initiate a federal
7

As previously mentioned, Every is a pro se litigant. And,
as a pro se litigant, he may not understand, and, indeed, is
likely unfamiliar with, the distinctions between individual
capacity and official capacity suits. To the extent Every does
take the opportunity to amend his complaint, he should note the
important distinction.
29

criminal prosecution and “[o]nly the United States as prosecutor
can bring a complaint under 18 U.S.C. §§ 241-242 (the criminal
analogue of 42 U.S.C. § 1983).”
(1st Cir. 1989) (per curiam).

Cok v. Cosentino, 876 F.2d 1, 1

Because there is no private right

of action for claims under 18 U.S.C. §§ 241-242, Every cannot
state a viable claim for which relief may be granted.

For that

reason, Every’s criminal code claims must be dismissed.

7.

State Law Claims
As drafted, plaintiff’s complaint fails to set forth the

essential elements of any viable federal claims.

Consequently,

the court need not consider whether it is appropriate to
exercise supplemental jurisdiction over his state law claims. 8
See 28 U.S.C. § 1367(c) (“district courts may decline to
exercise supplemental jurisdiction” over plaintiff’s state law
claims if “the district court has dismissed all claims over
which it has original jurisdiction”).

Should plaintiff amend

his complaint to state viable federal causes of action, the

8

There is no suggestion in the pleadings that the court may
properly exercise subject matter jurisdiction over plaintiff’s
state law claims pursuant to 28 U.S.C. § 1332 (diversity of
citizenship).
30

court will then consider whether state law claims over which
supplemental jurisdiction may be exercised are viable.

Conclusion
This limited record discloses a sympathetic plaintiff who
may well have been ill-treated by the Town of Littleton and
various town officials, but who is pursuing the wrong remedies
in the wrong court.

This court is without jurisdiction to

consider Every’s state law claims as pled, and he has not
adequately pled any cognizable federal claims.

For the reasons discussed, and for those given in
defendant’s memorandum in support of its motion, the Town of
Littleton’s motion to dismiss (document no. 6) is GRANTED with
prejudice as to Every’s claims for violation of the Fifth,
Sixth, and Fourteenth Amendment, based on defendants’ refusal to
release sewer records to Every.

Every’s claims under the

federal criminal code are likewise dismissed with prejudice.
Defendant’s motion to dismiss Every’s claims under the
Fourteenth Amendment, based on Littleton’s singling Every out
for enforcement during the period of sewer issues, and claims
for violation of the Fourth Amendment is GRANTED, but without
prejudice to plaintiff’s filing a motion for leave to file an
amended complaint (to be attached to the motion for leave)
within thirty (30) days of the date of this order, if he can
31

plausibly and in good faith allege claims under the Fourth
and/or Fourteenth Amendment, based upon adequate factual
support.

SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
September 11, 2018
cc:

Robert Every, pro se
Corey M. Belobrow, Esq.

32