Nowaczyk v. N.H. Supreme Court CV-97-635-JD 02/24/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Steven J. Nowaczyk

v. Civil No. 97-635-JD

The New Hampshire Supreme Court, et al.

O R D E R

Plaintiff, appearing pro se, filed a civil rights complaint

against, among others, the New Hampshire Supreme Court, the New

Hampshire Committee on Judicial Conduct ("CJC"), Judge Patricia

Coffey, John Coffey, Coffey Legal Services, Judge Walter Murphy,

the towns of North Hampton and Seabrook, several town officials,

Rockingham County, and several county officials. The magistrate

judge reviewed plaintiff's pro se complaint pursuant to 28

U.S.C.A. § 1915A and recommends dismissal of the complaint.

Plaintiff objects to the report and recommendation contending

that his complaint should not have been subjected to the § 1915A

screening process and that the magistrate misconstrued the

factual bases for his claims and misapplied several of the legal

grounds in recommending dismissal of the complaint. After a de

novo review, the court adopts the magistrate's report and

recommendation in part, as modified herein, but declines to accept the recommendation to dismiss the entire complaint.

Background1

Plaintiff was charged with crimes arising from events

pertaining to fires at three restaurants. As he clarifies in his

objection to the magistrate's report and recommendation,

plaintiff's claims in this suit arise from his arrest for

stalking and his arrest for arson of the Copper Penny Restaurant,

neither of which resulted in convictions. He alleges that in

1990 and 1991 he co-owned the Copper Penny Restaurant in North

Hampton, New Hampshire, and that Amy Keegan was an employee of

the restaurant. He consulted with John Coffey, a lawyer of the

firm Coffey Legal Services, at least once in December of 1991

about the Copper Penny Restaurant and the Nifty 50ies Cafe

corporation. After the Copper Penny Restaurant burned in

December 1991, plaintiff sold his interest to the Nifty 50ies

Cafe corporation, and he and Keegan became employees of the Nifty

50ies Cafe corporation. At some point, Keegan and plaintiff

became involved in an "extramarital affair."

In October of 1992, plaintiff plead guilty to federal

charges of filing a false loan application and bank fraud and was

1The facts are summarized from plaintiff's complaint and in large part duplicate the background facts provided in the magistrate's report and recommendation. The guoted portions are also from the complaint.

2 given an eight-month jail sentence and three years of supervised

release. Upon his release from jail in April of 1993, plaintiff

was supervised by defendant, Clayton Foster. Plaintiff alleges

that Foster was "obsessed" with plaintiff's inability to pay the

court ordered restitution. In August of 1993, a safe was stolen

from the Nifty 50ies Cafe. The incident was investigated by the

Hampton Police Department. Plaintiff filed a complaint with the

New Hampshire Attorney General's office that the manner in which

the police conducted their investigation damaged his reputation.

The matter was referred to the Hampton board of selectmen.

Plaintiff also told Foster about the theft, the police

investigation, and his complaint to the Attorney General's

office.

In December of 1993, the Nifty 50ies Cafe also burned.

Keegan and Foster met with investigators, and Keegan told them

that plaintiff had nothing to do with the fire. Keegan and

plaintiff ended their affair on hostile terms because plaintiff

was attempting a reconciliation with his wife. In January of

1994, Foster met with plaintiff and his wife and "was advised as

to all relevant matters concerning plaintiff." Thereafter,

Foster and Keegan met with Seabrook and Hampton police officers,

agents of the Federal Bureau of Alcohol, Tobacco, and Firearms,

and two private citizens, Raymond and Margaret Desilets. At the

3 meeting, Keegan "volunteered erroneous information" and

"misrepresentations" about plaintiff and "provided a script" for

the Desilets to read as part of an "evil plan" to cause

plaintiff's false arrest and imprisonment, and malicious

prosecution. Keegan and the Desilets allegedly had more meetings

with police to further the "evil plan to falsely prosecute and

imprison the plaintiff."

On February 1, 1994, North Hampton police officer Richard

Sawyer obtained a warrant to arrest plaintiff for the offense of

stalking Keegan. Plaintiff alleges that Sawyer misrepresented

facts in the warrant affidavit and failed to allege an offense

under New Hampshire law. Plaintiff was arrested pursuant to the

allegedly defective warrant on February 2. He was arraigned

before Judge Frasier, who is also a defendant in plaintiff's

suit, and Judge Frasier imposed $500.00 in bail for a seventy-two

hour detainer. While plaintiff was held at the Rockingham County

Jail, Northampton police officers "contrived an evil plan" to

send Raymond Desilets to visit plaintiff while wearing a hidden

body wire to record incriminating statements.

In the next few days, plaintiff was arrested and arraigned

on charges of arson of the Copper Penny Restaurant, solicitation

of arson of Wilber's Diner, and conspiracy to commit arson of the

Nifty 50ies Cafe. Bail was imposed for a seventy-two hour

4 detainer. Plaintiff alleges that Judge Frasier contacted Clayton

Foster, plaintiff's parole officer, reguesting him to get a

federal warrant as soon as possible.

Foster then allegedly contacted a federal probation officer

in Florida as part of his effort to get a federal arrest warrant

for plaintiff. Plaintiff alleges that Foster misrepresented

facts in his effort to get the warrant saying that plaintiff had

carried a gun, and had stalked Keegan telling her that he would

kill her if she reported plaintiff's illegal activities.

Foster's statements were based on what Keegan told the Seabrook

and North Hampton police in January of 1994. Despite the lack of

a federal arrest warrant, on February 8, 1994, Judge Frasier

entered a no bail order that plaintiff appealed to the superior

court.

Judge Patricia Coffey, a defendant, held a hearing on

plaintiff's appeal from Judge Frasier's no bail order. Plaintiff

was not then informed that Judge Coffey was the wife of attorney

John Coffey or that she held an interest in Coffey Legal

Services. Judge Coffey imposed bail in the amount of $25,000

resulting in plaintiff's continued pretrial confinement.

In March and April of 1994, plaintiff was indicted on

charges of arson of the Copper Penny Restaurant, conspiracy to

commit arson of the Nifty 50ies Cafe, criminal solicitation to

5 commit arson of Wilber's Diner, being a felon in possession of a

firearm, and "assorted counts" of criminal restraint, kidnaping,

and false imprisonment. During April, Judge Coffey ruled on a

variety of motions pertaining to plaintiff's criminal charges.

Although represented by counsel, plaintiff also filed a pro se

motion for a writ of habeas corpus "which articulated a myriad of

constitutional guestions and grounds concerning an appearance of

bias and prejudice" about Judge Coffey. Plaintiff contended that

Judge Coffey appeared to be asleep during his April bail hearing

and appeared to be predisposed against him. Judge Coffey denied

his pro se petition for habeas relief without a hearing or

further expansion of the record. Again acting pro se, plaintiff

filed a motion to disgualify Judge Coffey, which she also denied.

He then submitted a complaint to the New Hampshire Judicial

Conduct Committee. The CJC dismissed the complaint as meritless

in September of 1994.

The charges against plaintiff were divided into three groups

for trial. The Nifty 50ies Cafe fire charges were tried first

before Judge Coffey. Plaintiff was convicted, and then appealed

to the New Hampshire Supreme Court raising the issue of Judge

Coffey's alleged bias. His conviction was summarily affirmed.

Justice William Johnson, who was vice-chair of the CJC when

plaintiff's complaint against Judge Coffey was considered,

6 participated in plaintiff's appeal to the New Hampshire Supreme

Court. Plaintiff requested reconsideration on grounds of Justice

Johnson's alleged lack of impartiality, but, he alleges, "the

court simply denied the additional pleadings."

Before plaintiff's trial on the Copper Penny Restaurant

charges, plaintiff's counsel moved to disqualify Judge Coffey

raising for the first time allegations that plaintiff consulted

with her husband, John Coffey, of Coffey Legal Services. Judge

Coffey telephoned the firm to ask about representation of

plaintiff, and then granted the motion to disqualify herself.

The case was reassigned to Judge Walter Murphy. After a day of

trial, information about the Nifty 50ies Cafe arson charges was

impermissibly introduced, and a mistrial was declared. On July

3, 1997, the indictments concerning the Copper Penny Restaurant

arson were dismissed.

Plaintiff filed a series of pro se motions to vacate Judge

Coffey's rulings in the criminal proceedings against him. In

November of 1997, Judge Coffey vacated her denial of plaintiff's

request to suspend his sentence on his conviction on the Nifty

50ies Cafe charges and referred the matter to another judge. She

disqualified herself from any further litigation involving

plaintiff. Judge Murphy reviewed Judge Coffey's rulings and

denied all of plaintiff's motions. Plaintiff then moved to

7 disqualify Judge Murphy because he was presiding in civil

litigation involving the Nifty 50ies Cafe and plaintiff's wife.

Plaintiff alleges that "a reasonable person could subjectively

conclude that Judge Walter L. Murphy harbored a bias which would

compel him to taint his rulings." Plaintiff continued his

efforts to report Judge Coffey's alleged bias and complains that

the secrecy requirements of the Judicial Conduct Committee have

prevented him from presenting a complete case as to bias.

Based upon those facts, plaintiff alleges twenty-two counts

against the defendants and seeks to bring a class action on

behalf of persons interested in obtaining information from the

CJC. Count I addresses plaintiff's claims pertaining to Judge

Coffey's alleged bias, and Counts II and V challenge the CJC's

handling of his complaint against her and the application of

various New Hampshire statutes and rules. Counts II and III

complain about Justice Johnson's participation on the CJC and in

consideration of plaintiff's appeal. Count VI alleges

indifference by the New Hampshire Supreme Court, the CJC, Judges

Coffey and Murphy, and "other judicial members" to plaintiff's

rights to an impartial tribunal and equal protection and due

process rights. Count XXII similarly alleges general

dissatisfaction with the operation of the CJC. Count VII focuses

more specifically on Judges Coffey and Murphy alleging due process violations in their handling of plaintiff's cases.

Counts VIII and XI allege that John Coffey and Coffey Legal

Services violated the attorney-client privilege and committed

malpractice. Counts IX and X allege that Judge Coffey and Jane

Doe disclosed confidential attorney-client information and

thereby violated plaintiff's constitutional rights and seeks

money damages.

Count XII alleges that Judge Frasier illegally and

unconstitutionally detained and imprisoned plaintiff and seeks

damages. Count XIII alleges that Timothy Simpson, a bail

commissioner and justice of peace, issued the warrant for

plaintiff's arrest on stalking charges and for arson of the

Copper Penny Restaurant without probable cause in violation of

his Fourth, Fifth, Sixth, Eighth and Fourteenth Amendment rights,

and seeks damages. In Count XIV, plaintiff alleges that a group

of police officers, Foster, Keegan, the Desilets, and two ATF

agents "acted in unification" to deprive him of constitutional

rights and also committed state law torts of false arrest, false

imprisonment, malicious prosecution, abuse of process, invasion

of privacy, and defamation. Counts XV, XVI, XVII, and XVIII

allege the liability of North Hampton, Hampton, Seabrook, and

Rockingham County for negligent hiring, training, and supervision

of defendant police officers and other "public servants" leading to the violation of plaintiff's constitutional rights. Count XIX

alleges that Steven Keable was negligent in his investigation and

prosecution of the allegations against plaintiff resulting in his

malicious prosecution. Count XX charges the clerk of the Hampton

District Court, John Clark, with contributing to the violations

of plaintiff's constitutional rights by others when he

communicated with Foster about plaintiff's second detainer.

Count XXI alleges claims against Foster pertaining to his input

into plaintiff's arrests and his efforts to obtain a federal

warrant.

Discussion

Plaintiff objects to the application of the screening

process pursuant to 28 U.S.C.A. § 1915A to his case. He also

objects to certain factual statements and the magistrate's

conclusions in the report and recommendation. The challenged

portions of a recommendation by the magistrate judge to dismiss a

case are reviewed de novo.

(b)(1); Fed. R. Civ.

P. 72 (b) .

The Prison Litigation Reform Act, effective in April of

1996, added the screening procedure codified as 28 U.S.C.A. §

1915A that is aimed at discouraging prisoners from filing claims

that are not likely to succeed. See Crawford-El v. Britton, 118

10 S. C t . 1584, 1596 (1998). Section 1915A(a) requires the district

court to review, as soon as possible, "a complaint in a civil

action in which a prisoner seeks redress from a governmental

entity or officer or employee of a governmental entity."

Plaintiff argues that § 1915A is limited to suits seeking redress

concerning prison conditions brought against the incarcerating

institution, and, therefore, that the magistrate was not

authorized to review his complaint.

The plain language of § 1915A does not support plaintiff's

interpretation since the statute on its face is not limited to

cases challenging prison conditions as he suggests. In contrast

to § 1915A, 42 U.S.C.A. § 1997e(c), also part of the Litigation

Reform Act, directs the court to dismiss on its own motion or the

motion of another party "any action brought with respect to

prison conditions under section 1983" that is "frivolous,

malicious, fails to state a claim upon which relief can be

granted, or seeks monetary relief from a defendant who is immune

from such relief." (Emphasis added.) Other courts have employed

§ 1915A to review complaints that, similar to the one filed by

plaintiff, do not challenge prison conditions and are not brought

against the prison. See, e.g., Sims v. Kernan, N o .3:98-CV-0539-

AS,

(N.D. Ind. Dec. 4, 1998). The cases

plaintiff cites in support of his interpretation are inapposite.

11 Accordingly, review pursuant to § 1915A is required in this case.

"On review, the court shall identify cognizable claims or

dismiss the complaint, or any portion of the complaint, if the

complaint - (1) is frivolous, malicious, or fails to state a

claim upon which relief may be granted; or (2) seeks monetary

relief from a defendant who is immune from such relief." §

1915A(b). In determining whether the complaint states a

cognizable claim, the court uses the same standard as is

applicable to a motion pursuant to Federal Rule of Civil

Procedure 1 2 (b)(6). See, e.g., Atkinson v. Bohn,

(8th Cir. 1996); Sims,

; Sumner v.

Tucker,

(E.D. Va. 1998) .

In considering whether a complaint states a claim,

plaintiff's well pleaded factual allegations are accepted as true

with all reasonable inferences drawn in his favor. Aulson v.

Blanchard,

(1st Cir. 1996). In addition, a pro se

complaint is generally held to a less stringent standard than

pleadings drafted by lawyers. Haines v. Kerner,

(1972). A complaint will not be dismissed for failure to

state a claim "unless it appears beyond doubt that the plaintiff

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

entitle him to relief." Conley v. Gibson,

(1957) .

12 A. Claims Arising from the CJC's Actions

Many of plaintiff's claims challenge actions taken by the

CJC and its members. Plaintiff seeks a declaratory judgment to

declare unconstitutional certain New Hampshire Supreme Court

Rules pertaining to the confidentiality of CJC complaints and to

declare that actions by the CJC violated his federal and state

constitutional rights. He also asks that this court enjoin the

New Hampshire state courts from instituting proceedings against

him based on the rules applicable to CJC complaints.

The procedures of the New Hampshire Committee on Judicial

Conduct do not violate plaintiff's federal constitutional rights,

and state constitutional rights are not actionable under

Plaintiff, as a complainant, does not have a

constitutional right to have the CJC handle his complaint in a

way that would help him develop evidence about his complaint or

to pursue review of the CJC's decision, as he claims. Plaintiff

has not identified a liberty or property interest that was

affected by the CJC's decisions pertaining to his complaints, and

no such interests are apparent from his pleadings. See, e.g.,

Fournier v. Reardon,

(1st Cir. 1998)

(discussing elements of procedural and substantive due process

2The administrative rules of the CJC are part of the Rules of the New Hampshire Supreme Court, Rules 39 and 40 (West 1998).

13 claims), petition for cert, filed. No. 98-1264 (Feb. 5, 1999);

Frances-Colon v. Ramirez,

(1st Cir. 1997)

(essential elements of due process); Santiago de Castro v.

Morales Medina,

(1st Cir. 1991) (same). As

plaintiff has failed to allege an essential element of his due

process claim against the CJC and its members, he fails to state

such a claim.

The Egual Protection Clause of the Fourteenth Amendment

guarantees that the state will not "deny to any person within its

jurisdiction the egual protection of the laws." U.S. Const,

amend. XIV, § 1. The rules, processes, and procedures of the CJC

exist "to provide for the orderly and efficient administration of

the Code of Judicial Conduct," N.H. Sup. C t . Rule 39(1). The CJC

"shall consider all complaints" that are submitted in compliance

with its reguirements but "shall not consider complaints against

a judge or master or referee relating to his rulings." N.H. Sup.

C t . Rule 39(9). Complaints relating to a judge's rulings must be

addressed through the court appellate process. Id. The CJC has

no authority to relieve a complainant from the effects of a

judge's actions or to award compensation for injuries caused by

such actions.

The CJC considered plaintiff's complaint against Judge

Coffey, but apparently, based on plaintiff's allegations, found

14 that it had no merit and dismissed it. See Sup. C t . Rule 40(4).

Plaintiff alleges that the CJC deprived him of equal protection

by failing to make a "complete record" of his complaint against

Judge Coffey and by denying him an opportunity to develop

evidence to support his allegations. He says that the CJC's

"imperviousness to the statutes and the rules" deprived him of

equal protection. Plaintiff, however, does not allege that his

complaint was treated any differently than any other similar

complaint and the circumstances he describes appear to conform to

the CJC's rules.3 Since plaintiff has not identified a basis for

a due process right that would require any greater process than

that afforded by the CJC, an alleged lack of process cannot be

the basis for an equal protection claim.

Plaintiff alleges that the CJC's confidentiality require­

ments violate his First Amendment rights by forbidding him to

disclose his filing of a complaint with the CJC and also by

preventing him from obtaining information that he could use as

3If plaintiff intended to bring an equal protection claim based on his pro se status, he has not alleged facts that would tend to show that the CJC treated him in a particular way because he was unrepresented, rather than because of the content of his complaint. Since the Equal Protection Clause "embodies a general rule that States must treat like cases alike but may treat unlike cases accordingly," Vacco v. Quill, 117 S. C t . 2293, 2297 (1997), the CJC had no obligation to treat a facially meritless complaint, from a pro se or represented complainant, as it would complaints that are not facially meritless.

15 evidence in other proceedings. The CJC rule pertaining to the

confidentiality of complaints reguires complainants to

keep confidential the fact that a complaint has been filed with the committee until either the complaint is dismissed, a statement of formal charges is prepared and filed as described in section 7 (a) of this rule, or the complainant is notified that the committee has disposed of the complaint by taking appropriate remedial action as described in subsection (h) of this section.

N.H. Sup. C t . Rule 40(3)(b). The rule does not prevent a

complainant from public disclosure of a judge's conduct that he

believes is inappropriate or violates the code of conduct. N.H.

Sup. C t . Rule 40(3) comment. Plaintiff's suggestion that he may

file another complaint is too speculative to reguire analysis of

whether his right to free speech would be violated by the

confidentiality rule.

The rules also provide for the confidentiality of CJC

proceedings except in particular circumstances. N.H. Sup. C t .

Rule 40(3). On the facts he alleges, plaintiff has not

demonstrated any need for information from the CJC that would

implicate the First Amendment nor has he suggested that the

confidentiality rules impose a violation of his First Amendment

rights in any other way. Furthermore, the purpose of the CJC is

not to permit individuals to obtain evidence for use in other

proceedings, but rather to provide an orderly method of

registering complaints concerning alleged judicial misconduct.

16 Accordingly, plaintiff has not alleged facts to support a claim

that the CJC's confidentiality reguirements have violated or may

in the future violate his First Amendment rights. See, e.g.,

Kamasinski v. Judicial Review Council,

(2d

Cir. 1994) .

As the CJC's rules, processes, and procedures are not

unconstitutional in the context of plaintiff's allegations, he

has failed to state claims against the CJC.

B. Related Claims for Declaratory and Injunctive Relief

Plaintiff asks this court to enjoin the New Hampshire

Supreme Court from instituting contempt proceedings against him

in the future and to prevent his transfer from the New Hampshire

State Prison. Plaintiff also asks that a variety of New

Hampshire statutes and court rules be declared unconstitutional.

To the extent plaintiff is seeking injunctive and declaratory

relief based on anticipated future actions, the court lacks

jurisdiction to provide such relief.

A basic tenet of federal jurisdiction is that the plaintiff

must have standing to assert the claims he brings, which reguires

allegations of an "injury in fact," causation, and

redressability. Steel v. Citizens for a Better Environment, 118

S. C t . 1003, 1016 (1998); see also Berner v. Delahantv,

(1st Cir. 1997), cert, denied, 118 S. C t . 1305 (1998).

Plaintiff has not any alleged facts to show that he is likely to

be injured by any of the challenged laws or rules in the future.

Although he says that he either is or will in the future file

another complaint with the CJC, as discussed above, the CJC's

actions do not cause injury to him as a complainant. Since the

injury must be "actual or imminent, not conjectural or

hypothetical," a mere general possibility that plaintiff might

find himself embroiled in future criminal prosecution involving

the same issues is insufficient.4 See Luian v. Defenders of

Wildlife,

(1992) (internal guotations omitted);

see also Berner,

. In addition, even if plaintiff

could meet the reguirements of alleging an injury in fact, the

abstention doctrines of Younger v. Harris,

(1971) and

its progeny, would preclude the relief sought from this court.

To the extent plaintiff seeks declaratory relief from past

decisions by the New Hampshire Supreme Court, as discussed by the

magistrate, his claims are barred by the Rooker-Feldman doctrine.

Federal district courts lack jurisdiction to review decisions of

4Plaintiff's allegation that his trial on other charges was scheduled for September of 1998 does not create a sufficient likelihood of injury since he does not explain how the challenged CJC rules or the bail statute are implicated in that proceeding. In addition, he has alleged no circumstances making it likely that he will need to invoke the disgualification rules or laws in the future.

18 state courts and to consider claims that are "inextricably

intertwined" with state court decisions. See Wang v. New

Hampshire Bd. of Registration in Med.,

(1st Cir.

1995). Accordingly, this court lacks subject matter jurisdiction

to consider plaintiff's claims to the extent he seeks injunctive

or declaratory relief pertaining to particular decisions of New

Hampshire state courts.

Plaintiff's claims based on actions by the CJC and its

members and by the New Hampshire Supreme Court are dismissed.

C. Judicial Immunity

Absolute judicial immunity protects a judge from claims for

money damages based on actions performed in a judicial capacity

and within the judge's jurisdiction. Mireles v. Waco,

(1991), citing Forrester v. White,

(1988). Plaintiff's claims against Judges Coffey, Murphy, and

Frasier are based entirely on allegations of their actions

performed in their judicial capacities and within their

jurisdiction. Plaintiff's merely conclusory statements to the

contrary are insufficient to avoid dismissal of meritless claims.

Therefore, to the extent plaintiff seeks money damages, his

claims against the judges are barred by judicial immunity.

Plaintiff's claims against the individual justices of the New

19 Hampshire Supreme Court, including Justice Johnson, based upon

their dispositions of his appeals, are also barred by judicial

immunity.

Further, plaintiff's claims against the judges and Justice

Johnson allege that they were not impartial, or acted with an

appearance of bias. In support of his claims, plaintiff asks

that the defendant judges' lack of impartiality be inferred from

decisions made against him and from other circumstances that do

not impugn their impartiality. For the most part, plaintiff

relies on his own conclusory statements about the defendant

judges' appearance of bias and presents little in the way of

concrete facts to sustain his allegations. The invocation of the

"appearance" of partiality is easy and on its face would permit

an individual to make an issue out of almost any conduct.

However, the mere recitation of this mantra is insufficient to

raise an issue. The plaintiff has failed to allege facts that

demonstrate any actual bias against him nor facts that would

support an inference of bias strong enough to overcome the

presumption of judicial impartiality. See, e.g., Marshall v.

Jerrico Inc.,

(1980); Withrow v. Larkin,

(1975); Brooks v. New Hampshire Supreme Court, 80

F .3d 633, 640 (1st Cir. 1996).

While judges are not absolutely immune from claims for

20 prospective declaratory relief, see Pulliam v. Allen,

(1984), plaintiff seeks declarations that Judges

Coffey, Murphy, and Frasier and Justice Johnson violated laws and

his rights in their past actions, rulings, and decisions.

Therefore, plaintiff's reguests for declaratory relief ask the

court to review decisions and rulings by the defendant judges.

As noted above, a federal district court is not authorized to

review decisions by state courts, even decisions allegedly

involving constitutional error. See Brown v. Ives,

(1st Cir. 1997), cert, denied, 118 S. C t . 1307 (1998).

To the extent plaintiff seeks prospective injunctive relief,

he has not alleged that the defendant judges are subject to a

declaratory judgment, or that declaratory relief was unavailable,

as a prereguisite to injunctive relief. See

.

Plaintiff's arguments in his objection that his unsuccessful

efforts to obtain state habeas relief demonstrate the

unavailability of a declaratory judgment for purposes of § 1983

do not meet the reguirement. The habeas proceedings pertained to

his conviction, not the actions that are at issue in this case,

and he has not alleged that he sought a determination of the

unconstitutionality of any of the challenged laws or rules.

Plaintiff's complaint lacks any basis for awarding the

declaratory or injunctive relief he seeks against the judges.

21 Accordingly, all of plaintiff's § 1983 claims against the

defendant judges and the New Hampshire Supreme Court and its

justices are dismissed.

D . Class Action

Plaintiff proposes a class of persons interested in

obtaining and disclosing information about charges filed with the

CJC and about the process and disposition of complaints to the

CJC. As the magistrate judge explained in his report and

recommendation, a pro se litigant, like plaintiff, may not

represent anyone else in a law suit and is unlikely to be allowed

to represent a class. See, e.g., McGrew v. Texas Bd. of Pardons

& Paroles,

(5th Cir. 1995); Oxendine v.

Williams,

(4th Cir. 1975); Maldonado v.

Terhune,

(D.N.J. 1998) . In addition,

since all of plaintiff's claims pertaining to the CJC and to

judicial misconduct are dismissed, his proposed class action is

moot. See McGrew,

.

22 E. Claims Based on Allegations of False Arrest and Malicious

Prosecution

Plaintiff alleges a group of claims arising from the

circumstances of his arrest and prosecution on arson charges

stemming from fires at the Copper Penny Restaurant, Wilber's

Diner, and the Nifty 50ies Cafe and his arrest on charges of

stalking Amy Keegan. The magistrate judge recommended that these

claims be dismissed because plaintiff's convictions on the Nifty

50ies Cafe remain in place and plaintiff's claims constitute an

impermissible collateral attack on his convictions. See Heck v.

Humphrey,

(1994) ("[A] section 1983

plaintiff must prove that a conviction or sentence has been

reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal authorized to make such

determination, or called into guestion by a federal court's

issuance of a writ of habeas corpus.").

In his objection, plaintiff, by way of clarification, states

that his claims are limited to those arising from his arrest on

charges of stalking and his arrest and prosecution on charges

from the Copper Penny Restaurant fire. Plaintiff alleges that he

was never convicted on those charges making the reguirement of

Heck v. Humphrey inapplicable to his claims. Accordingly, for

purposes of this initial review only, plaintiff's claims arising

23 from the charges of stalking Amy Keegan and arson in the Copper

Penny Restaurant fire are not subject to dismissal under Heck v.

Humphrey.

Other infirmities in plaintiff's remaining claims reguire

further review, however. Plaintiff alleges that defendants who

were involved in his arrest and detention violated his First,

Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights.

Although he says in Count XIV that the defendants "acted in

unification" to deprive him of his First Amendment right to

petition the government, he alleges no facts that in any way

suggest deprivation of his First Amendment rights, and those

claims are dismissed. Cf. Britton v. Maloney,

,

40 n.29 (D. Mass. 1997) (discussing First Amendment claims in

similar circumstances). In addition, as plaintiff has not

alleged any facts that suggest violation of his Eighth Amendment

right to be free of cruel and unusual punishment, see, e.g..

Farmer v. Brennan,

(1994), all claims based on

the Eighth Amendment are also dismissed.

Plaintiff bases his Sixth Amendment claims on allegations

that he was deprived of his right to be tried by a neutral and

impartial court. To the extent plaintiff alleges Sixth Amendment

claims against individual judges, those claims are barred by

judicial immunity. With respect to other defendants, plaintiff

24 fails to allege any facts pertaining to them that would have

deprived plaintiff of his Sixth Amendment right to be tried by an

impartial court. In addition, he has not alleged sufficient

facts to overcome the presumption of judicial impartiality nor

has he alleged facts to show that the outcome of the challenged

proceedings was prejudiced by any lack of impartiality. See

Neron v. Tierney,

(1st Cir. 1988) (discussing

reguirements for Sixth Amendment claim of juror bias).

Plaintiff also alleges violations of his due process

rights.5 Plaintiff's due process claims, in summary, allege that

defendants caused him to be arrested, detained, and prosecuted

without probable cause. Neither the procedural nor substantive

due process prongs of the Fourteenth Amendment afford plaintiff

relief for claims essentially alleging false arrest or malicious

prosecution. See Albright v. Oliver,

(1994)

(plurality opinion); Graham v. Connor,

(1989);

Meehan v. Plymouth, No. 97-2235,

(1st Cir. Feb. 3,

1999); Reid v. New Hampshire,

(1st Cir. 1995).

Accordingly, plaintiff's due process claims under § 1983 are

dismissed, although the same claims may be cognizable as state

tort claims. See id.

5Plaintiff's reference to the Fifth Amendment is understood to duplicate his due process claim under the Fourteenth Amendment as he alleges no other grounds for a Fifth Amendment claim.

25 Plaintiff also alleges that defendants violated his right to

egual protection under the Fourteenth Amendment, but he does not

allege any disparate or discriminatory treatment nor does he

identify himself with a protected class.6 To state a claim under

the egual protection clause, plaintiff must allege that he was

the victim of intentional discrimination. Judge,

.

Accordingly, as plaintiff has alleged no facts in support of his

egual protection claim, it must be dismissed.

F. Conspiracy

The magistrate judge recommended that plaintiff's conspiracy

claims brought pursuant to

and § 1986 be

dismissed as plaintiff had not alleged the elements of a § 1985

conspiracy and a § 1986 claim cannot stand alone. The court

agrees and adopts the magistrate's recommendation as to the

disposition of the § 1985 and § 1986 claims.

In his objection, plaintiff argues that he also intended

conspiracy claims based on § 1983. Plaintiff's allegations

construed in his favor are sufficient for purposes of preliminary

review to state a § 1983 conspiracy consisting of "a combination

6Plaintiff's allegations of discrimination against him as a pro se litigant pertain to proceedings before the CJC, the New Hampshire Supreme Court, and Judges Coffey and Murphy and do not involve his surviving claims based on his arrest or prosecution on stalking and arson charges.

26 of two or more persons acting in concert to commit an unlawful

act, or to commit a lawful act by unlawful means, the principal

element of which is an agreement between the parties to inflict a

wrong against or injury upon another." Earle v. Benoit,

(1st Cir. 1988) (guotation omitted); see also Brennan

v. Hendriqan,

(1st Cir. 1989).

Plaintiff includes private individuals as defendants in his

conspiracy claim alleging that they "acted in unification to

deprive the plaintiff" of constitutional rights. State action is

a reguirement for § 1983 claims, but private individuals may be

liable if the private defendant and a state actor acted jointly

to deprive plaintiff of his civil rights. See Rubin v. Smith,

(D.N.H. 1996). For purposes of preliminary

review, plaintiff's allegations are sufficient to state a claim

of joint action.

G. Claims Against Particular Defendants

Plaintiff's claims against several individuals who are

protected by immunity are also dismissed.7 As is discussed

7To the extent plaintiff may have intended to bring state tort claims, in addition to § 1983 claims, against these defendants, his claims would be barred by defendants' immunity under state law. See Gould v. Director, New Hampshire D.M.V.,

(1994); Belcher v. Paine,

(1992) .

27 above, plaintiff's claims against Judge Frasier are barred by his

judicial immunity from suit for actions taken in his judicial

capacity within his jurisdiction. Plaintiff's allegations

against defendant Timothy Simpson, identified as a bail

commissioner and justice of the peace, claim that Simpson

violated plaintiff's constitutional rights by issuing arrest

warrants for plaintiff that were not based upon probable cause

and by ordering plaintiff held without bail. As all of Simpson's

actions alleged by plaintiff are part of his function as a bail

commissioner and justice of the peace, and within his

jurisdiction in those functions, he is protected by judicial

immunity from plaintiff's claims. See Slotnick v. Garfinkle,

(1st Cir. 1980); Thompson v. Sanborn,

(D.N.H. 1983) . Similarly, John Clark, who was acting in

his function as clerk of court and at the direction of Judge

Frasier in all actions alleged by plaintiff, is protected by

guasi-judicial immunity. See Forte v. Sullivan,

(1st cir. 1991). Plaintiff's claims against Steven Keable, based

on Keable's actions within his prosecutorial function preparing,

advocating, and finally dismissing the arson charges against

plaintiff arising from the fire at the Copper Penny Restaurant,

28 are barred by Keable's prosecutorial immunity.8 See Kalina v.

Fletcher, 118 S. C t . 502, 506-7 (1997).

H. State Tort Claims Against the Coffey Defendants

Plaintiff brings claims against Judge Patricia Coffey, John

Coffey, Coffey Legal Services, and a secretary at Coffey Legal

Services for state torts based on malpractice and violation of

the attorney client privilege. All of the federal claims

relating to the same events brought against Judge Coffey are

dismissed. The state law claims against Judge Coffey alleging

her duty to disgualify herself from hearing his criminal case

challenge Judge Coffey's actions in her capacity as a judge and,

therefore, are barred by her judicial immunity. See Gould,

. Plaintiff's claims against the remaining Coffey

defendants allege state tort claims for malpractice and violation

of his attorney client privilege pertaining to his relationship

with Coffey Legal Services in 1991 and Judge Coffey's involvement

in his criminal case on charges from the Nifty 50ies Cafe arson

charges.

8Ordinarily, the claims against Keable, brought in his official capacity only, would be construed as claims plead against the county rather than against Keable individually. Because plaintiff includes a more detailed description of Keable's role, however, he may have also intended an individual claim to which prosecutorial immunity would apply.

29 The claims against the Coffey defendants are based on

entirely different factual circumstances than the claims

remaining against the other defendants. The claims remaining

against the other defendants, alleging malicious prosecution,

false arrest, deprivation of Fourth Amendment rights, and a §

1983 conspiracy, are based on the circumstances of plaintiff's

arrest and initial detention on charges of stalking and arson of

the Copper Penney Restaurant and have nothing to do with the

Coffey defendants' alleged representation of plaintiff or his

resulting attorney client privilege. The Coffey defendants are

not named in connection with any of the stalking or arrest claims

and none of the other remaining defendants are implicated in any

way in the state tort claims alleged the Coffey defendants.

Since plaintiff's state law claims against the Coffey

defendants do not share the same core of facts or the same

central theories as the other remaining claims, the court lacks

supplemental jurisdiction to consider the claims against the

Coffey defendants.

(a); see also City of

Chicago v. International College of Surgeons, 118 S. C t . 523, 530

(19 98); Futura Dev't of Puerto Rico, Inc. v. Estado Libre

Asociado de Puerto Rico,

(1st Cir.), cert, denied,

119 S. C t . 338 (1998). Accordingly, all claims against John

Coffey, Coffey Legal Services, and individual employees of Coffey

30 Legal Services are dismissed for lack of subject matter

jurisdiction.

I. Remaining Claims

For purposes of § 1915A review, plaintiff's complaint states

claims in counts XIV through XVIII, pursuant to

, for violations of his Fourth Amendment rights, and

conspiracy to do so based on his arrest for stalking and arrest

and prosecution on arson charges related to the fire at the

Copper Penny Restaurant. Count XXI states similar Bivens claims

against Clayton Foster.9 Plaintiff alleges state tort claims in

the same counts for negligent hiring and supervision, abuse of

9Plaintiff brings claims under

against defendant Clayton Foster, identified as a United States Probation Officer, and agents of the Federal Bureau of Alcohol, Tobacco, and Firearms. As these defendants are federal officers acting under color of federal, rather than state, law, the claims against them would be more properly brought directly under the Constitution. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

(1971). Since § 1983 actions and Bivens actions are "kindred" claims, plaintiff's allegations pertaining to the federal defendants are construed as Bivens claims but evaluated, for purposes of preliminary review, under the same legal standards as the related § 1983 claims. See, e.g., Dav v. Massachusetts Air Nat'l Guard, No. 98- 1727,

(1st Cir. Jan. 29, 1999); Kelly v. Serna, 87 F .3d 1235, 1238 (11th Cir. 1996).

31 process, false arrest, malicious prosecution, defamation,

invasion of privacy, and false imprisonment.

Conclusion

For the foregoing reasons, based upon preliminary de novo

review pursuant to § 1915A, plaintiff's claims alleged in his

amended complaint filed on December 29, 1997, (document no. 4) in

counts I through XIII, XIX, XX, and XXII are dismissed. As to

the remaining counts, all claims based on the First, Fifth,

Sixth, Eighth, and Fourteenth Amendments are dismissed. Also,

any claims in the remaining counts against Judges Coffey, Murphy,

and Frasier, Justice Johnson, individual justices and employees

of the New Hampshire Supreme Court, members and employees of the

CJC, Timothy Simpson, Steven Keable, and John Clark are

dismissed.

The claims and defendants remaining in the complaint are as

follows:

Count XIV: Alleges Fourth Amendment violations actionable

as a conspiracy under

and state tort claims of

false arrest, false imprisonment, malicious prosecution, abuse of

process, invasion of privacy, and defamation. Claims are brought

against the chief of the North Hampton police department, Frank

Beliveau; North Hampton police officers Richard Sawyer, Jr.,

32 David Gigare, Robert Wharem, Jane Doe, Michael Maloney; Seabrook

police officer James Cauley and several unknown Seabrook police

detectives; Chief of the Hampton police department, Robert Marks;

Hampton police officers Shawn Maloney, Philip Russell, William

Lilli, and Dan Gildey; United States Parole Officer Clayton

Foster; two unknown agents of the Federal Bureau of Alcohol,

Tobacco, and Firearms; and individual defendants, Amy Keegan, and

Raymond and Margaret Desilets.

Count XV: Alleges Fourth Amendment violations actionable

under

and state tort claims of negligent

hiring, training, and supervision, that are brought against the

Town of North Hampton and its selectmen, Richard Crowley, Dick

Wollmar, Stanley Knowles, and Mary Herbert.

Count XVI: Alleges Fourth Amendment violations actionable

under

and state tort claims of negligent

hiring, training, and supervision, that are brought against the

Town of Hampton and six unknown selectmen.

Count XVII: Alleges Fourth Amendment violations actionable

under

and state tort claims of negligent

hiring, training, and supervision, that are brought against the

Town of Seabrook and several unknown selectmen.

Count XVIII: Alleges Fourth Amendment violations actionable

under

and state tort claims of negligent

33 hiring, training, and supervision, that are brought against

Rockingham County.10

Count XXI: Alleges Fourth Amendment violations against

Clayton Foster.

Accordingly, the amended complaint (document no. 4)

together with a copy of this order and of the report and

recommendation (document no. 9) shall be served on the defendants

remaining in the suit.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

February 24, 1999

cc: Steven J. Nowaczyk, pro se

10As the individual commissioners and superintendent of the jail are sued only in their official capacities, those claims are construed as claims against the county, not against the individual defendants. See Kentucky v. Graham,

(1985) .

34