Fiumara v. McCarthy CV-97-552-SD 08/18/98 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Joseph J. Fiumara

v. Civil No. 97-552-SD

Michael C . McCarthy; Mary G . Fiumara; Robert Towler; Alan Roach

O R D E R

In this action pro se plaintiff Joseph J. Fiumara alleges

that defendants Mary Marshall f/k/a/ Fiumara (Marshall), his ex-

wife; Michael C. McCarthy, his wife's attorney; and Robert Towler

and Alan Roach, Hampton police officers, violated his

constitutional rights in violation of

and 1985.

Currently before the court are Marshall's and McCarthy's motions

to dismiss, to which Fiumara objects.

Background

Fiumara was involved in divorce proceedings when the events

in question took place. He alleges that on October 30, 1994,

police officers arrested him and charged him with violating a

restraining order forbidding him from contacting his estranged

wife. At the police station he surrendered his belongings,

including the keys to his house. The police held Fiumara overnight pending his arraignment. When he returned to his home

at 32 Bride Hill Drive the following day, Fiumara found that

someone had entered his home and removed items. Suspecting that

his wife had entered the house, plaintiff telephoned the police

department to report a burglary and request that the police send

someone to investigate. Officer Towler told Fiumara the police

would not investigate the incident because Attorney McCarthy had

informed Officer Roach that there was a dispute regarding who had

the right to live in the house. The police thus concluded it was

a domestic matter. Officer Towler said he would call Attorney

McCarthy and then return Fiumara's call. After not hearing from

Officer Towler, Fiumara again called the police station and

informed Officer Towler that he had a court order prohibiting his

wife from entering the property. Officer Towler suggested that

plaintiff bring to the station any documents he wished the police

to consider.

Discussion

1. Standard of Review

When a court is presented with a motion to dismiss filed

under Fed. R. Civ. P. 12(b)(6), "its task is necessarily a

limited one. The issue is not whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer

evidence to support the claims." Scheuer v. Rhodes,

(1974). "[A] pro se complaint, 'however inartfully

pleaded,' must be held to 'less stringent standards than formal

2 pleadings drafted by lawyers' and can only be dismissed for

failure to state a claim if it appears '"beyond doubt that the

plaintiff can prove no set of facts in support of his claim which

would entitle him to relief."'" Estelle v. Gamble,

(1976) (quoting Haines v. Kerner,

(1972)

(quoting Conley v. Gibson,

(1957))).

2. Domestic Relations

^Marshall argues that the court lacks subject matter

jurisdiction over this case, or in the alternative should

abstain, because the matter involves domestic relations. The

federal courts have recognized a domestic relations exception in

cases that call upon a federal court to issue a divorce, alimony,

or child custody decree. See Ankenbrandt v. Richards,

(1992). This rule, however, is premised on the

assumption that Congress did not intend diversity jurisdiction to

extend to such matters. Thus some courts have limited the

exception to diversity cases. See Rubin v. Smith,

(D.N.H. 1993) (citing Fernos-Lopez v. Lop e z ,

(1st Cir.), cert, denied,

(1991)). "Other

courts have deemed the exception applicable when federal-question

jurisdiction exists, but then only when the federal court would

become 'deeply involve[d] in adjudicating domestic matters.'"

(quoting Thompson v.

Thompson,

(9th Cir. 1986), a f f 'd ,

(1988)). In either case, the rule is inapplicable to this

3 case. Like the plaintiff in R u b i n , Fiumara alleges violation of

his constitutional rights. Furthermore, Fiumara does not

challenge the state court's decree or call upon this court to

divide the marital property. Thus the case does not require this

court to "become 'deeply involve[d] in adjudicating domestic

matters.'" Id.

2. Section 1985

Fiumara alleges that the defendants violated

(3), which provides a cause of action when "two or more

persons . . . conspire . . . for the purpose of depriving, either

directly or indirectly, any person or class of persons of the

equal protection of the laws, or of equal privileges and

immunities under the laws, or for the purpose of preventing or

hindering the constituted authorities of any State or Territory

from giving or securing to all persons . . . equal protection of

the laws. . . ." McCarthy, however, argues that Fiumara has not

stated a claim under section 1985 because he has not alleged that

McCarthy was motivated by an invidiously discriminatory animus.

The United States Supreme Court has held that the first

clause of section 1985 (deprivation clause) applies to private

conspiracies1 only when "the conspiratorial conduct of which [the

plaintiff] complains is propelled by 'some racial, or perhaps

otherwise class-based, invidiously discriminatory animus.'"

1Section 1985, unlike section 1983, applies to wholly private conspiracies as well as those involving state actors.

4 Aulson v. Blanchard,

, 3 (1st Cir. 1996) (quoting

Griffin v. Breckenridge,

(1971)). The Court

imposed this requirement to "limit the clause to its intended,

constitutional purpose and prevent its use as a 'general federal

tort law.'" Libertad v. W e l c h ,

(1st Cir. 1995)

(quoting

). Although the Supreme

Court activated this requirement in the context of a purely

private conspiracy, the United States Court of Appeals for the

First Circuit has extended this requirement to conspiracies

involving state actors as well as completely private

conspiracies. See Auls o n , supra,

.

The second clause of section 1985(3), known as the hindrance

clause, has also been interpreted as limited to conspiracies

based upon a discriminatory animus. "Although the Supreme Court

has interpreted the first clause, called the 'deprivation

clause,' of § 1985(3), it has never construed the hindrance

clause, and in fact, has expressly left this question open."

. In Libertad, the First Circuit

considered whether the "hindrance clause" should be restricted to

conspiracies motivated by a racial or other group-based motive.

The First Circuit held that "this requirement should apply to the

hindrance clause, lest the same phrase--"equal protection"--be

construed differently in the same statute."

at 448 (citing

Bray v. Alexandria Women's Health Clinic,

(1993)).

Thus, regardless of whether Fiumara's section 1985 claim alleges

a private conspiracy or one implicating state actors and whether

5 it alleges a violation of the first or second clause, he must

show that some racial or otherwise class-based invidious animus

lay behind the conspirators' actions. As Fiumara's complaint

fails to allege that any group-based animus propelled the alleged

conspiracy, he has not stated a claim under section 1985.

3. Section 1983

Section 1983 extends liability only to persons who act under

color of state law.2 This limitation, however, does not

exculpate all private actors from section 1983 liability. In

some cases, "private actors may align themselves so closely with

either state action or state actors that the undertow pulls them

inexorably into the grasp of § 1983." Roche v. John Hancock

Mutual Life Ins. C o . ,

(1st Cir. 1996).

Although the United States Supreme Court has discussed the

state action3 requirement many times, it appears from the case

law that "state action is not a unitary concept." Yeo v. Town of

Lexington,

, 249 n.6 (1st Cir. 1997), cert, denied,

(1998). Determining when private persons act

2Section 1983 provides that Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . . "

3"'In cases under § 1983, 'under color' of law has consistently been treated as the same thing as the 'state action' required under the Fourteenth Amendment.'" Rendell-Baker v. K o h n ,

(1982) (quoting United States v. Price,

, 794 n.7 (1966)).

6 "under color of state law" is a fact-intensive inquiry that "may

shift depending on context." Id. at 254. The Court has used a

two-part approach to determine when a private actor can be held

liable under section 1983. "First, the deprivation must be

caused by the exercise of some right or privilege created by the

State or by a rule of conduct imposed by the State or by a

person for whom the State is responsible." Lugar v. Edmonson Oil

C o . ,

(1982). When the plaintiff alleges that

violation of his or her constitutional rights was authorized by

state law, step one of Lug a r 's test is satisfied. See

. When the conduct complained of is contrary to state law,

however, the plaintiff must show greater state complicity lest

section 1983 become capable of "federalizing all state tort law."

MacFarlane v. Smith,

(D.N.H. 1996), a f f 'd ,

(1st Cir. 1997). To pass step one of Lugar, an

unauthorized deprivation must have been caused by a person for

whom the state is responsible. See Lug a r , supra, 457 U.S. at

940. This requirement is satisfied when the plaintiff alleges

that there was a [m]isuse of power, possessed by virtue of

state law and made possible only because the wrongdoer [was]

clothed with the authority of state law . . . .'" Monroe v.

Pape,

(1961) (quoting United States v. Classic,

(1941)). Thus, in Lugar, a case arising from

the prejudgment attachment of Lugar's property, the Court held

that Lugar's allegation that the state statute providing the

attachment procedure was unconstitutional stated a claim against

7 the party who had requested the attachment of his property. See

. The Lugar Court, however, held

that Lugar's allegation that the respondents misused the state-

authorized procedure in violation of state law did not state a

claim under section 1983. See

. Thus, to qualify as

state action, a private act authorized by state law need only be

done with assistance from state authorities. An act unlawful

under state law, however, only becomes actionable under section

1983 when there was an illicit conspiracy between state

authorities and the private party. See

.

The second step of Lug a r 's two-part test requires that "the

party charged with the deprivation must be a person who may

fairly be said to be a state actor."

. In applying the second part of this test, the court must

consider "the extent to which the actor relies on governmental

assistance and benefits, whether the actor is performing a

traditional governmental function, and whether the injury caused

is aggravated in a unique way by the incidents of governmental

authority." Edmonson v. Leesville Concrete C o . ,

(1991) .

Attorney McCarthy asks the court to dismiss the section 1983

claim against him for want of state action because he is not a

state actor and did not engage in joint conduct with state actors

such as could make him liable under section 1983. The court

agrees. First, McCarthy's status as an officer of the court does

8 not make him into a state actor. Courts have held that even

court-appointed attorneys who are paid by the state are not state

actors. See Polk County v. Dodson,

(1981);

Malachowski v. City of Kee n e ,

(1st Cir.), cert.

denied,

(1986). Thus McCarthy's membership in the

bar alone cannot convert him into a state actor. As this case

does not challenge a practice officially sanctioned by state law,

McCarthy could only be liable under section 1983 if he conspired

with state officials.

To state a claim for conspiracy under section 1983, the

plaintiff need not meet a heightened pleading requirement, but

cannot rely on conclusory allegations. See Crespo v. New York

City Police Comm'r,

(S.D.N.Y. 1996). The

First Circuit previously applied a heightened pleading standard

to allegations of conspiracy. In a recent case, however, the

Supreme Court unanimously rejected a heightened pleading standard

applied to cases alleging municipal liability under section 1983,

stating, "it is impossible to square the 'heightened pleading

standard' . . . with the liberal system of 'notice pleading' set

up by the Federal Rules." Leatherman v. Tarrant County Narcotics

Intelligence and Coordination U n i t ,

(1993).

Although the First Circuit has not explicitly addressed the

applicability of this holding to section 1983 cases alleging

conspiracy, there is no basis for finding the Court's reasoning

in Leatherman less applicable in this context. See Romero-

Barcelo v. Hernandez-Agosto,

(1st Cir. 1996).

9 Nevertheless, to state a claim, the plaintiff must allege facts

that if true would entitle him or her to relief; the plaintiff

cannot rely on conclusory averments of conspiracy. See

The

court finds, giving the plaintiff every inference in his favor,

that the facts he alleges do not evince a conspiracy between

Attorney McCarthy and the police. To the contrary, while a

conspiracy requires a meeting of the m i n d s , the gravamen of

Fiumara's charge against McCarthy is that he intentionally misled

the police.

As Fiumara has not alleged that Marshall herself was a state

actor, she can only be subject to liability under section 1983 if

she conspired with state actors. Liberally construing the

plaintiff's allegations, the court finds that he has stated a

colorable conspiracy complaint against his former wife.

Fiumara's factual allegations go beyond conclusory allegations of

conspiracy. In particular, Fiumara apparently is suggesting that

the police actively participated in and assisted Marshall's

illegal entry into Fiumara's home by letting her use his keys and

accompanying her to the house. Thus, at this juncture, Fiumara's

section 1983 claim remains viable.

Conclusion

For the abovementioned reasons, the court grants Michael

McCarthy's motion to dismiss (document 8) in full; Mary

Marshall's motion to dismiss (document 7) is granted as to

10 plaintiff's

claim, but denied as to his claim

under

.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

August 17, 1998

cc: Joseph J. Fiumara, pro se John K. Bosen, Esq. John H. McEachern, Esq. William G. Scott, Esq. Peter G. Beeson, Esq.

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