Smith v. State of NH Bd. of Licensure CV-94-463-B 03/08/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert F. Smith, et al.

v. No. 94-463-B

The State of New Hampshire, Board of Licensure for Land Surveyors, et al.

O R D E R

Plaintiffs, Robert and Joanne Smith, appearing pro se, have

filed a civil rights action for damages against the New Hampshire

Board of Licensure for Land Surveyors, members of the Board, and

Richard Noyes. Pending before me are the defendants' motions to

dismiss. For the reasons set forth below, I dismiss their claims

against the Board and its members in their official capacities,

but stay dismissal of their claims against Noyes and Board

members sued individually pending the Smiths' response.

I. STANDARD OF REVIEW

When considering motions to dismiss pursuant to Federal Rule

of Civil Procedure 12(b)(6), this court must accept all material

factual allegations as true and make all reasonable inferences in favor of the plaintiffs. Covne v. Somerville,

, 442-

43 (1st Cir. 1992). This court must liberally construe a pro se

complaint and grant dismissal only if plaintiffs can prove no

facts entitling them to relief. Rockwell v. Cape Cod Hospital,

26 F .3d 254, 255 (1st Cir. 1994).

II. BACKGROUND

The Smiths believe that they lost their boundary dispute in

a state court action due to the testimony of defendant Richard

Noyes, a land surveyor who appeared as a witness for the

opposition. The Smiths filed a complaint against Noyes with the

New Hampshire Board of Licensure for Land Surveyors ("Board").

The Smiths also sued Noyes in superior court alleging fraud and

misrepresentation and violations of federal civil rights

statutes. Noyes filed a counterclaim alleging harassment. On

August 18, 1992, the superior court dismissed the Smiths'

complaint on the grounds that their state law claims were barred

by the statute of limitations and that they failed to state a

civil rights claim. The New Hampshire Supreme Court declined the

Smiths' notice of appeal on November 18, 1992, because a final

2 decision on the merits had not been made by the lower court,1 and

the Smiths decided not to file an interlocutory appeal. The

Smiths' petition to the United States Supreme Court for writ of

certiorari was denied on May 17, 1993.

III. DISCUSSION

As I explained at the status conference in this case held on

January 13, 1995, the Eleventh Amendment bars suits for damages

in federal court against a state including its agencies and

members sued in their official capacities. See Will v. Michigan

Deo't of State Police,

, 70-71 & n.10 (1989); Johnson

v. Rodriquez,

(1st Cir. 1991), cert, denied,

112 S. C t . 948 (1992). Therefore, the Smiths' claims against the

Board and its members sued in their official capacities are

dismissed.

In order to maintain a civil rights action under

,2 plaintiffs must allege that they have been

1 Although the superior court's notice of decision dated August 18, 1992, granted Noyes's motion to dismiss the Smiths' claims, Noyes's counterclaims in that action remained pending.

2 The Smiths allege a count based upon a "standard of conduct" established by

. Because § 1983 provides no substantive rights but merely serves as a vehicle for

3 deprived of a federal constitutional or statutory right by

persons acting under color of state law. Watterson v. Page,

(1st Cir. 1993). Reading the allegations in the

Smiths' complaint liberally, and in light of their explanations

in their objections to defendants' motions to dismiss, they

charge the defendants with violating their First Amendment right

to seek redress of grievances and with denying their Fourteenth

Amendment right to due process. Specifically, they allege that

the Board failed to follow procedural reguirements in deciding

not to discipline Noyes and that the Board members conspired with

Noyes to support his counterclaim against the Smiths.

The Smiths' First Amendment claim lacks merit as they were

afforded an opportunity to file their complaint against Noyes

with the Board. The First Amendment does not give the Smiths the

right to favorable action on their claim, nor does it guarantee

that the petition will be addressed by an unbiased decisionmaker.

See Templeman v. Philbrick, Civ. No. 92-409-B (3/28/94), aff'd

1994 U.S. A p p . LEXIS 35099 (December 14, 1994). Accordingly,

this claim is dismissed.

vindicating violations of federal constitutional and statutory rights, I construe their allegations to seek damages under § 1983 for alleged violations of their constitutional rights. See Albright v. Oliver, 114 S. C t . 807, 811 (1994).

4 To state a Fourteenth Amendment due process claim, the

Smiths first must allege facts to show that they were deprived of

a recognized property right or a sufficient property interest to

invoke protection from arbitrary government action.3 See, e.g.

Kentucky Pep't of Corrections v. Thompson,

(1989); Board of Regents v. Roth,

(1972);

Flemming v. Nestor,

(1960). See also

Hoffman v. Warwick,

(1st Cir. 1990).

"Constitutionally protected property interests originate in

extra-constitutional sources; they are 'created and their

dimensions are defined by existing rules or understandings that

stem from an independent source such as state law . . . .'"

Correa-Martinez v. Arrillaqa-Belendez,

(1st Cir.

1990) (guoting Board of Regents,

).

The Smiths cite the Board's statutory authority and

procedure claiming that they are within the class of persons

intended to be protected by the Board. The Smiths argue that the

statutory procedure for disciplinary actions applies to them as

persons who brought a complaint to the Board, but they fail to

3 The Smiths do not allege any facts that would suggest a violation of their liberty interests.

5 identify any recognized property interest of theirs that due

process would protect.

The Board is authorized to promulgate rules and conduct

proceedings for the licensing and discipline of land surveyors in

New Hampshire. See

-A:58 to :74 (1984

and Supp. 1993). Licensed land surveyors such as Noyes, who the

Board may discipline by revoking or limiting their licenses to

engage in their profession, have a recognized property interest

in the Board's proceedings that raises due process

considerations. See Amsden v. Moran,

(1st

Cir.), mot, denied,

(1990), cert, denied,

(1991). By contrast, the Board has no authority to award

damages or impose penalties against complainants to the Board,

such as the Smiths. The Board's decisions whether or not to

discipline a licensed surveyor, therefore, do not affect a

complainant's property interest. Because the Smiths do not have

a protected property interest in the Board's proceedings and

decision, they cannot state a § 1983 cause of action based upon

an alleged violation of their due process rights by the Board.4

4 To the extent that the Smiths assert that the Board members are engaged in a conspiracy with Noyes to wrongly initiate or continue a civil claim against them, they allege, if

6 The defendants moved to dismiss on a variety of grounds5

but did not raise the issue that the Smiths failed to allege a

protected property interest under the Fourteenth Amendment.

Although the Smiths' pleading deficiency would ordinarily reguire

dismissal of the complaint, I will allow them ten days from the

date of this order to respond to the grounds for dismissal that I

have raised.

IV. CONCLUSION

For the foregoing reasons defendants' motion to dismiss

(document number 10) is granted as to the Board and its members

sued in their official capacities. Defendants' remaining motions

to dismiss (part of document number 10 and documents numbers 7

and 17) are stayed pending response within ten days by

plaintiffs.

SO ORDERED.

Paul Barbadoro United States District Judge March 8, 1995

anything, state law claims for conspiracy and abuse of process rather than cognizable federal claims.

5 Many of the defenses raised by the defendants would serve as alternative grounds for dismissing the Smiths' claims.

7 cc: Robert F. Smith Joanne M. Smith Stephen Judge, Esq. Donald Whittum, Esq.

8