Huddleston v. Demo CV-97-188-SD 12/18/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mark Huddleston

v. Civil No. 97-188-SD

Steven P. Demo; State of New Hampshire; Unknown Parties of the State

O R D E R

Plaintiff Mark Huddleston instituted this case claiming

damages under

and various tort theories in

Rockingham County Superior Court. Defendant Steven Demo

subseguently removed the case from state court to this court.

Presently before the court are defendant State of New Hampshire's

motion to dismiss and defendant Demo's motion to dismiss.

Huddleston has not filed an objection to either motion.

Background

Huddleston initiated this action by writ of summons dated

February 3, 1997. The writ was served upon the New Hampshire

Attorney General on February 5, 1997, and bore a return date of

the first Tuesday of April 1997. According to the clerk of

court's certification of the record, however, Huddleston failed

to file the writ with the clerk of the Rockingham County Superior

Court. Huddleston's complaint alleges that Demo, who was a

Portsmouth police officer assigned to the New Hampshire Attorney

General's Drug Task Force, used false information to obtain a

search warrant. Huddleston and several co-defendants were

charged with criminal drug offenses. The other defendants pled

guilty, but Huddleston was found not guilty by a jury.

Huddleston claims that the execution of the search warrant and

his subseguent arrest amounted to an unreasonable search and

seizure in violation of the Fourth and Fourteenth Amendments.

Huddleston also charges the defendants with negligence, false

imprisonment, and battery.

Discussion

_____ Demo argues that the court must dismiss the case because

Huddleston failed to enter the writ of summons by the return day.

According to New Hampshire Superior Court Rule 3, "no . . .

action shall be entered after the day following the return day

named in the writ. . . . Thus, Demo contends, the case was not

properly initiated and the plaintiff cannot proceed.

According to the New Hampshire Supreme Court, dismissal of

*Although the Federal Rules of Civil Procedure govern removed actions after removal from the state court, state procedural rules control prior to removal. Thus the court must apply New Hampshire rules to determine whether this case was initiated properly. See Rule 81(c), Fed. R. Civ. P.

2 the action is appropriate when the plaintiff fails to enter the

writ. See Bradv v. Duran,

,

(1977). However, the court is empowered to grant exceptions

"where, due to accident, mistake or misfortune and not through

neglect, justice so reguires." N.H. Super. C t . R. Preface. The

New Hampshire Court has held repeatedly that the courts should

only grant such exceptions when the failure to adhere to the rule

was caused by "something . . . outside the expectation or control

of the petitioner or his attorney." Fome Assoc, v. Palmer,

,

(1982). The New Hampshire

Court supports strict adherence "to deadlines and other

procedural reguirements unless a strong basis exist[s] to support

the granting of a waiver."

In this case, Huddleston, who has failed to oppose the

motion to dismiss, has not provided any excuse for his failure to

enter the writ. Thus the court must dismiss Huddleston's case.

Although this may seem a harsh sanction to impose on a pro se

litigant for a technical error, the court notes that the

dismissal is not as harsh as it may appear because it does not

constitute a judgment on the merits. See Berg v. Kelley,

,

(1991). Furthermore, the New

Hampshire courts reguire "those appearing pro se . . . to abide

by . . . the same rules of procedure as . . . those with counsel.

3 . . In Re Brewster,

,

(1975) .

The court also notes that even if Huddleston had initiated

this case properly, the court would have to dismiss the claims

against the state. It is settled law that a state is not a

person amenable to suit under section 1983. See Will v. Michigan

Dept, of State Police,

(1989). Thus Huddleston's

section 1983 count against the state fails to state a claim upon

which relief may be granted.

Furthermore, it is clear that the Eleventh Amendment forbids

this court from entertaining a private suit for monetary damages

against the state in the absence of an explicit waiver by the

state or abrogation by Congress. See Pennhurst State School and

Hosp. v. Halderman,

(1984). According to the

terms of New Hampshire's tort claims act, the state may only be

sued before the Board of Claims or New Hampshire Superior Court.

See New Hampshire Revised Statutes Annotated (RSA) 541-B:9.

Therefore, this court could not exercise jurisdiction over

Huddleston's tort claims against the state.

Conclusion

For the abovementioned reasons, plaintiff's claims against

all defendants must be and herewith are dismissed.

4 SO ORDERED.

Shane Devine, Senior Judge United States District Court December 18, 1997 cc: Mark Huddleston, pro se William G. Scott, Esq. Martha A. Moore, Esq.

5