Strahan v. McNamara et al

Filing 34

ORDER denying #20 Motion for Temporary Restraining Order; denying #22 Motion for Hearing. So Ordered by Chief Judge Landya B. McCafferty. (gla)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Maximus Strahan
v.

Civil No. 22-cv-391-LM
Opinion No. 2022 DNH 144 P

William McNamara, Tracy Birmingham,
Steven Lee, William Breault, and Rene Kelly

ORDER
Plaintiff Richard Maximus Strahan has sued two New Hampshire local police
officers and three officials of the University of New Hampshire (“UNH”), alleging
that they acted individually and in concert to illegally bar him from using UNH
transportation services and to defame him. Presently before the court is plaintiff’s
emergency motion for temporary restraining order and preliminary injunction
enjoining the defendants from arresting him for violating the transportation
services ban or from “otherwise interfering with [his] peaceful riding any bus
operated by [UNH] during its regular period of public transit operations . . . .”.
(Doc. No. 20). The defendants have timely objected (doc. nos. 26 and 28), and Mr.
Strahan has timely replied to those objections. (doc. no. 30).1

1Mr.

Strahan also moved for a hearing on his motion for injunctive relief (doc.
no. 22), to which the defendants timely objected (doc. nos. 27 and 29). The motion
for a hearing is denied, as the essential facts are not in dispute. See Campbell Soup
Co., v. Giles, 47 F.3d 467, 470 (1st Cir. 1995) (observing that an evidentiary hearing
is not an indispensable requirement when a court allows or refuses injunctive relief
under Fed. R. Civ. P. 65.); Syntex Ophthalmics, Inc. v. Tsuetaki, 701 F.2d 677 682
(1st Cir. 1983) (evidentiary hearing not mandated where “evidence already in the
district court's possession” enabled it to reach reasoned conclusions).

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Legal Standard
To obtain a restraining order or preliminary injunction, a plaintiff “must
establish that he is likely to succeed on the merits of his claim, that he is likely to
suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest.” Bruns v.
Mayhew, 750 F.3d 61, 65 (1st Cir. 2014) (quoting Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008)). “To demonstrate likelihood of success on the merits,
[the party] must show more than mere possibility of success — rather, [he] must
establish a strong likelihood that [he] will ultimately prevail.” Sindicato
Puertorriqueño de Trabajadores v. Fortuño, 699 F.3d 1, 10 (1st Cir. 2012).
“[T]he first two factors, likelihood of success and irreparable harm, [are] ‘the
most important’ in the calculus,” id. (quoting González–Droz v. González–Colón, 573
F.3d 75, 79 (1st Cir. 2009)), and “the second factor, irreparable harm, is an
‘essential prerequisite for equitable relief,’” Potts NH RE, LLC v. Northgate
Classics, LLC, No. 12–cv–82–SM, 2012 WL 1964554, at *3 (D.N.H. May 10, 2012)
(quoting Braintree Labs., Inc. v. Citigroup Global Mkts. Inc., 622 F.3d 36, 41 (1st
Cir. 2010)), R. & R. adopted by 2012 WL 1969051 (May 30, 2012). Any “preliminary
injunction is an extraordinary and drastic remedy that is never awarded as of right
. . . .” Peoples Fed. Sav. Bank v. People's United Bank, 672 F.3d 1, 8–9 (1st Cir.
2012) (citation omitted).

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Background
The following facts are drawn from Mr. Strahan’s complaint, documents
appended to the complaint, the instant motion, Mr. Strahan’s affidavit (doc. no. 23),
and the declaration of defendant Tracy Birmingham, general counsel for the
University System of New Hampshire (“Birmingham Dec.”) (doc. no. 28-1).
On June 10, 2022, UNH notified Mr. Strahan in writing that he would be
arrested if he entered any bus operated by UNH. Complaint (doc. no. 1) ¶¶ 3-4. Mr.
Strahan was served in hand with the notice soon after. Id. ¶ 20; Strahan Aff. (doc.
no. 23) ¶ 12. The notice was issued by UNH Director of Hospitality & Campus
Services William McNamara, one of the defendants in this case. See Attachment 1
to Pl. Mot. (doc. no. 20).
The notice states that Mr. Strahan is banned from UNH buses because of
repeated instances of refusal to abide by UNH transportation rules,
disregard of directions from transportation service employees, verbal
abuse and intimidation of University staff members and …[bus]
patrons, and refusal to comport yourself in a manner consistent with
behavioral expectations.
Id. Mr. Strahan describes the circumstances leading up to the ban as follows:
On 10 June 2022 I was commuting from UNH to Dover on the Wildcat
Transit Route 3B bus. The commute was uneventful until the bus
stopped at my chosen bus stop. I went to the front door to exit as is my
usual practice. But a new driver I never saw before told me that she
would not open the doors so I could exit. She gave me no reason why I
could not exit the bus. Instead of driving onward to the next bus stop,
she insisted in engaging in a protracted conversation with me. I did
not want to talk to her but just go back to the office. The other
passengers felt the same. They shouted out to her to drive the bus to
their stops and to let me out of the bus. Instead she became concerned
that I might file a complaint against her as she knew who I was and
was biased against me from the start in her conduct. She called the
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Dover Police to file a false report against me of disrupting the bus
and soliciting them to arrest me for trespassing on the bus. I felt
sorrier for my fellow passengers than for me. Clearly the driver was an
[expletive deleted] and just wanted to cause a ruckus.
Pltff. Aff. (doc. no. 23) ¶ 8.2
Defendant Tracy Birmingham, general counsel for the University System of
New Hampshire, provided background regarding Mr. Strahan’s interaction with the
UNH bus service. See Birmingham Dec. (doc. no. 28-1). After first noting that
defendant McNamara has the “authority to enforce rules relating to the use of
UNH’s transportation services, including banning passengers . . .” id. ¶ 2,
Birmingham detailed the following:
On or about March 20, 2019, UNH Transportation sent Strahan a
Final Warning, cautioning that Strahan would not be permitted to ride
the UNH Wildcat Transit buses if he continued to disregard drivers’
instructions that he stop moving to the front door before the bus
stopped and crossing directly in front of the bus after disembarking.
On or about October 12, 2021, I emailed Mr. Strahan to remind him of
expectations for civil engagement and to advise that use of an expired
University student ID to avoid paying transportation fares was
fraudulent and needed to stop.
Birmingham Dec. (doc. no. 28-1) ¶¶ 4-5.
Birmingham also detailed Mr. Strahan’s past behavior on UNH
buses:
On or around October 19, 2021, a driver reported that Mr. Strahan
showed an invalid student UNH ID and tried to board the bus without
paying the fare.
On or around October 26, 2021, a driver reported that Mr. Strahan did
not show a valid bus pass or pay the fare. When the driver asked if he
2Mr.

Strahan does not explain how the driver was a new one “he had never
seen before” yet also “knew who [he] was and was biased against him.”
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had a UNH ID or the fare, he did not respond and the driver had to
continue on the route to avoid delays. When the driver insisted that he
display an ID or pay the fare, Mr. Strahan claimed that no one else
showed any pass to ride, and then reluctantly paid the fare while
shouting at the driver that transportation personnel “were all Nazis,
he would sue [them] all, [they] would rot in jail for the rest of [their]
lives, and [they] would all burn in hell with [their] corporate
overlords.”
On or around November 19, 2021, a driver reported that Mr. Strahan
tried to use an invalid student UNH ID and the driver said he had to
pay cash fare because his ID was invalid. He asked the driver who said
his ID was invalid, and then held up service to probe further for the
name of the manager who provided direction that his expired UNH ID
was not to be accepted. When he was advised of the individual’s name,
Mr. Strahan said “so she's the manager for now, but everything is
temporary. Don't be too loyal or get too attached to her because I am
the master of this situation.”
On or around November 23, 2021, a driver reported that Mr. Strahan
attempted to use his invalid UNH ID to ride, and was informed by the
driver that his UNH ID was not valid. He proceeded to pay the fare
while grumbling about how UNH IDs “don’t go invalid.” After he
finished paying, he brought up that the driver had filed a report about
him and stated that next week another UNH employee would be a
defendant in federal court regarding a government corruption lawsuit.
After that, he proceeded to wear his mask improperly, and ignored the
driver’s repeated announcements about mask use, forcing the driver to
stop the bus and confront him with a final warning.
On or around December 21, 2021, a driver reported that Mr. Strahan
attempted to use his invalid UNH ID. When the driver informed him
that his ID was invalid, he said, “I gave you a chance, but if you stay
on this path you will end up in hell.”
On or around January 6, 2022, a driver reported that Mr. Strahan
tried to use his invalid UNH ID. When the driver advised that he had
to pay, he said he only had a dollar. When the driver said he still had
to pay, Mr. Strahan made a scene and called the driver “a Nazi.” The
driver had to ask him to wear his mask properly three times. When
Mr. Strahan got off the bus, he stated that a transportation manager
“was a liar” and he was going to sue her.

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On or around March 24, 2022, a driver reported that Mr. Strahan stood
in the street at the bus stop. The driver reports that it is Mr. Strahan’s
practice to sometimes stand in the street to force the bus to wait short
of the normal bus stop. The driver gestured and beeped the horn to
notify Mr. Strahan to move, and then proceeded to the stop to allow
other passengers to board. Mr. Strahan screamed at the driver,
accused them of trying to run him over, and put his phone in the
driver’s face and said he was recording. Mr. Strahan entered the bus
without a mask (as the driver reported was his regular practice) and
only put it on after he had been seated in the back of the bus. The
driver did not direct Mr. Strahan to put on the mask upon entering the
bus in order to avoid a further confrontation. When he disembarked,
Mr. Strahan stepped into the street in front of the bus and walked
down the street obstructing the vehicle. The driver reports that Mr.
Strahan had similarly obstructed the vehicle after disembarking on the
previous day. On that day Mr. Strahan also walked to the front of the
bus before it stopped, and called the driver “stupid” when he was
directed to exit through the rear door.
On or around March 29, 2022, a driver reported that Mr. Strahan stood
in the street to block the bus from its normal stop and refused to move
when the driver directed him to get out of the street. Because Mr.
Strahan regularly enters the bus without a mask, the driver stood up
and directed him to put on a mask before entering. Mr. Strahan began
screaming at the driver and called him an “a-hole.”
On or around June 8, 2022, a driver reported that Mr. Strahan walked
to the front of the bus as it rolled to a stop. When the driver informed
him that riders had to exit from the doors at the back of the bus, Mr.
Strahan immediately started shouting and demanding the driver open
the front door, to which the driver said no because policy is that all
passengers get off through the back door. Mr. Strahan continued to
insist and the driver continued to deny his demand to open the front
door. Mr. Strahan then pulled out his phone, began recording the
driver, demanded their name and the names of their supervisors,
threatened to sue the driver, and accused the driver of kidnapping
him. The driver radioed UNH transportation dispatch and requested
that police be called to deal with the incident. Other passengers told
Mr. Strahan to stop his behavior and get off at the back door; Mr.
Strahan then engaged in a heated argument with some passengers
that lasted for approximately 10-15 minutes.
On June 9, 2022, when the driver requested that Mr. Strahan exit the
bus through the rear door in accordance with posted rules, he
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demanded her name, took his phone out and indicated he was
recording her, and said he would see her in court and that he “loves to
sue assholes like you.”
Birmingham Dec. (doc. no. 28-1) ¶¶ 6.
The transportation ban notice concludes by indicating that Mr. Strahan could
appeal the notice to UNH Police Chief and Associate Vice President for Public
Safety and Risk Management Paul Dean. Notice, Attachment 1 to Strahan Aff. (doc.
no. 23). Chief Dean denied the appeal on July 11, 2022.
Discussion
A. Likelihood of Success on the Merits
The gist of Mr. Strahan’s claim is that neither defendant McNamara nor
UNH had the authority to ban Mr. Strahan from UNH transportations services.
Specifically as to defendant McNamara, Mr. Strahan argues in his reply memo that
McNamara had no authority to ban any member of the public from riding on any
UNH bus. Pltf. Repl. (doc. no. 30) ¶¶ 1, 6. Mr. Strahan offers no support for his
assertion. As previously noted however, the Birmingham declaration unequivocally
indicates that Mr. McNamara does possess such authority. Birmingham Dec. (doc.
no 28-1) ¶ 2.
More generally, Mr. Strahan alleges that UNH’s ban is illegal because New
Hampshire’s criminal trespass statute only applies to real property, not a movable
object like a bus. Pltf. Mot. (doc. no. 20) at 2. The court’s analysis of the pertinent
statute suggests otherwise. New Hampshire law provides that a “person is guilty of
criminal trespass if, knowing that he is not licensed or privileged to do so, he enters
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or remains in any place.” N.H. Rev. Stat. Ann. § 635:2, I. In addition, “[c]riminal
trespass is a misdemeanor if: . . . (b) [t]he person knowingly enters or remains: . . .
(2) [i]n any place in defiance of an order to leave or not to enter which was
personally communicated to him by the owner or other authorized person.” N.H.
Rev. Stat. Ann. § 635:2, III(b)(2).
As the undisputed record shows that Mr. McNamara is an “authorized
person,” the only element of the New Hampshire statute at issue is whether a UNH
bus is a “place.” The court agrees with the parties’ assessment that the New
Hampshire courts have not specifically answered this question. In his reply, Mr.
Strahan asks this court to certify the question to the New Hampshire Supreme
Court. But as the First Circuit Court of Appeals has observed, “[h]aving chosen
the federal forum for his state-law claims, the plaintiff must live with our obligation
to apply New Hampshire law as it currently stands.” Reenstierna v. Currier, 873
F.3d 359, 368 (1st Cir. 2017); see also Phoung Luc v. Wyndham Mgmt. Corp., 496
F.3d 85, 95 (1st Cir. 2007) (observing that a plaintiff who chose a federal forum is
“in a particularly poor position to seek certification.”). The court, therefore, declines
to certify the question of whether a bus is a “place” within the meaning of New
Hampshire’s trespass statute, and instead turns to traditional methods of statutory
construction.3

3To

interpret a New Hampshire state statute, we enjoy New
Hampshire interpretive methods and canons of construction. See Garran v. SMS
Fin. V, LLC (In re Garran), 338 F.3d 1, 6 (1st Cir. 2003) (stating that when a state
court has not interpreted a state statute, the federal court “must predict how the
[highest state court] would interpret the statute”).
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New Hampshire statutes are interpreted based on their plain language. New
Hampshire courts “first look to the language of the statute itself, and, if possible,
construe that language according to its plain and ordinary meaning.” In re Carrier,
165 N.H. 719, 82 A.3d 917, 920 (2013). “[I]f the language is clear and
unambiguous,” the court need “not look beyond the language of the statute.” In re
Town of Seabrook, 163 N.H. 635, 44 A.3d 518, 525 (2012). The court must
“interpret legislative intent from the statute as written and [ ] not consider what
the legislature might have said or add language that the legislature did not see fit
to include.” Carrier, 82 A.3d at 920.
Here, the trespass statute contains no language limiting the definition of the
term “any place” to “real property,” as Mr. Strahan argues. If the New Hampshire
legislature had intended to restrict the scope of the word “place,” it could have done
so. While not directly on point, the New Hampshire Supreme Court’s decision in
State v. Brown, 927 A.2d 493, 494 (N.H. 2007) is illustrative of the proposition that
this court may not limit the breadth of a statute where the language of the statute
has not done so. In Brown, the defendant was charged with the state crime of
providing false information related to the purchase of a firearm, based on
information he omitted from a federal firearms form. Id. at 494. The trial court
dismissed the case, finding it had no jurisdiction because the offense related to the
federal form. Id. The Court reversed, holding that the statute4 “does not limit the
4N.H.

Rev. Stat. Ann. § 159:11 states that “[a]ny person who, in purchasing
or otherwise securing delivery of a pistol, revolver, or other firearm, gives false
information ... shall be guilty of a misdemeanor for the first offense, and be guilty of
a class B felony for any subsequent offense.”
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type of false information that it criminalizes when conveyed in the acquisition of a
firearm.” Id; see also, Antosz v. Allain, 40 A.3d 679, 682 (N.H. 2012) (declining to
apply “Firemen’s Rule,” barring a firefighter’s ability to sue for negligence, to a suit
that fell outside statute’s specific prohibitions).
As a federal court sitting in diversity, this court must provide its “best guess”
as to open questions of state law. See Noonan v. Staples, Inc., 556 F.3d 20, 30 (1st
Cir. 2009) (citing Liberty Mutual Ins. Co. v. Metro. Life Ins. Co., 260 F.3d 54, 65
(1st Cir. 2001)). At the same time, the court is mindful that it “must tread lightly in
offering interpretations of state law where controlling precedent is scarce.” Id.
(citing Gill v. Gulfstream Park Racing Ass'n, Inc., 399 F.3d 391, 402 (1st Cir. 2005)).
Balancing these considerations, and in accordance with New Hampshire principles
of statutory construction, the court declines to engraft a limitation onto the words
“premises” or “any place” in New Hampshire’s criminal trespass statute where the
New Hampshire legislature has not done so.5 As such, the court necessarily finds

5As

the parties acknowledge, there is scant relevant case law outside New
Hampshire to guide the court. At the federal level, a district court in this circuit
has held that a bus passenger’s refusal to follow a police officer’s direction to leave
the bus provided probable cause for an arrest under Maine’s “remain in any place”
criminal trespass statute. See Thompson v. City of Portland, 620 F. Supp. 482, 486
(D. Maine 1985). At the state level, an intermediate Ohio appeals court has held,
with respect to an analogous statute, that “[f]or purposes of the statute, a ‘premises’
is any ‘place,’ including a vehicle.” State v. Jones, 195 N.E. 3d 561, 568 (Ohio Ct.
App. 2022) (citing State v. Gilbert, 154 N.E.3d 288, 291-2 (Ohio Ct. App. 2020)). A
Texas appeals court, however, surveying Texas cases involving that state’s criminal
trespass statute, has come to the opposite conclusion. See Sarsfield v. State, 11
S.W.3d 326, 328 (Tex. App. 1999) (“We construe these cases as established authority
for the proposition that criminal trespass applies only to real property intrusions
. . . .”). A Georgia case implies, but does not hold, that entry onto a bus after
receiving notice from the driver that entry is forbidden could constitute criminal
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that Mr. Strahan has failed to meet his burden of demonstrating a likelihood of
success on the merits.
B. Irreparable Harm
Mr. Strahan fares no better with the second element of a successful request
for injunctive relief. He has not demonstrated that his ban from the UNH bus
system will cause him irreparable harm. He asserts that he has “no ready access”
to any pharmacy, supermarket or the UNH campus. Pltf. Aff. (doc. no. 23) ¶ 14.
But as defendants McNamara, Birmingham and Lee point out, there is public bus
service available to Mr. Strahan that would accommodate his need for
transportation to his pharmacy and a supermarket. Def. Mem. (doc. no. 28) at 8.
Moreover, Mr. Strahan is not banned from the UNH campus, only its transportation
services. Relatedly, although he implicitly acknowledges that he is neither a
current UNH student or employee, see Pl. Aff. (doc. no. 23) ¶ 1, Mr. Strahan offers
no details as to the “research” that allegedly requires his presence on the UNH
campus. Finally, to the extent that his one-year ban from UNH transportation
causes him financial harm, Mr. Strahan has an adequate remedy at law, which
further counsels against injunctive relief. Cf. Rosario-Urdaz v. Rivera-Hernandez,
350 F.3d 219, 222 (1st Cir. 2003) (“Where a plaintiff stands to suffer a substantial
injury that cannot adequately be compensated by an end-of-case award of money
damages, irreparable harm exists.”).

trespass under that state’s law. See State v. Seignious, 399 S.E. 2d 559, 560 (Ga.
Ct. App. 1990).
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C. Balance of Equities
This factor requires the court to weigh the “hardship to the movant if the
injunction does not issue as contrasted with the hardship to the nonmovant if it
does.” Borinquen Biscuit Corp. v. M.V. Trading Corp., 443 F.3d 112, 115 (1st Cir.
2006). Based on the record before the court, the hardship to Mr. Strahan is limited,
given the other transportation options and monetary damage claims available to
him. By contrast, the court is persuaded that the hardship to UNH is more
significant, given the detailed recounting of Mr. Strahan’s disruptive behavior on
the UNH bus, see Birmingham Dec. (doc. no. 28-1) ¶ 6, and his refusal to heed prior
warnings. It cannot seriously be disputed that UNH has an interest in operating its
buses without unnecessary interruption and protecting its drivers and other
passengers from other passengers’ inappropriate conduct. The balance of equities
therefore weighs in favor of denying plaintiff’s requested injunctive relief.
D. Public Interest
Neither side focuses heavily on the final factor — whether and to what extent
the public interest is impacted by the grant or denial of injunctive relief. In the
court’s view, the same factors that balanced the equities in the defendants’ favor
also persuade the court that denying the requested injunctive relief would not be
injurious to the public interest, given the documented history of Mr. Strahan’s
behavior.6
6The

court notes that Mr. Strahan has not meaningfully contested the factual
descriptions of his behavior in the Birmingham declaration. Instead, as described
herein, he focusses almost entirely on the defendants’ authority to temporarily bar
him from UNH transportation services.
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Conclusion
Based on the foregoing, plaintiff’s motion for temporary restraining order and
preliminary injunction (doc. no. 20) and his motion for hearing (doc. no. 22) are
denied.
SO ORDERED.

__________________________________
Landya McCafferty
United States District Judge
November 17, 2022
cc: Richard Maximus Strahan, pro se
Counsel of Record

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