Dunbar v . State of N H , et a l . CV-00-001-JD 06/29/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

P. Michael Dunbar, S r .

v. Civil N o . 00-001-JD Opinion N o .

State of New Hampshire, et a l .

REPORT AND RECOMMENDATION

Before the court is pro se plaintiff P. Michael Dunbar, Sr.,

who has filed suit against the State of New Hampshire/New

Hampshire Attorney General, the Rockingham County Attorney, the

Hampton District Court/Judge Frances Fraser, and the Plaistow

District Court/Judge Peter G. Hurd. Dunbar seeks injunctive

relief and monetary damages for alleged violations of his rights

under the 5th, 6th, 10th and 14th amendments to the Constitution.

As plaintiff is proceeding pro se and in forma pauperis the

complaint is currently before me for preliminary review. See

United States District Court for the District of New Hampshire

Local Rules (“LR”) 4.3(d)(2). For the reasons stated below, I

recommend that the complaint be dismissed. See

(e)(2)(B)(ii) & (iii). Background

Although Dunbar’s complaint lacks certain procedural

details, it appears that his allegations surround the failure of

various authorities of the State of New Hampshire to see to a

speedy resolution of certain driving offenses pending against him

in the Plaistow and Hampton District Courts. Dunbar is currently

incarcerated in Missouri. Dunbar was charged with various

driving offenses, all of which possess 1993 docket numbers. The

status of these charges is not specifically stated in the

complaint but the court assumes that the charges are still

pending. From prison in Missouri, Dunbar filed, by certified

mail, motions requesting speedy trial in both the Plaistow and

Hampton District Courts in July of 1998. Dunbar was under the

impression that the filing of these motions gave rise to a legal

right to have the matters brought to trial within 180 days of the

filing of the motions. Receiving no response to his motions,

Dunbar contacted the office of the New Hampshire Attorney General

in June of 1999. In September of 1999, Dunbar was advised by an

unnamed person at the Attorney General’s office that he should

contact the office of the Rockingham County Attorney. Dunbar

attempted to contact the office of the Rockingham County Attorney

2 in February of 1999 and twice in September of 1999, apparently

with no response. Plaintiff contacted both of the defendant

district courts “with motion(s) to dismiss” on May 1 , 1999,

August 1 6 , 1999, September 2 4 , 1999 and October 1 8 , 1999.

Plaintiff has never received a response from either court.

Plaintiff complains that as a result of the inaction of the

state prosecutors and courts in failing to adjudicate or dismiss

his pending charges, he has suffered violations of his rights

under the 5th, 6th, 10th and 14th amendments of the Constitution

and now seeks dismissal of the charges and monetary damages.

Discussion

In reviewing a pro se complaint, a district court is obliged

to construe the pleading liberally. See Ayala Serrano v . Lebron

Gonzales,

, 15 (1st Cir. 1990) (following Estelle v .

Gamble,

7 , 106 (1976) to construe pro se pleadings

liberally in favor of that party). At this preliminary stage of

review, all factual assertions made by the plaintiff and

inferences reasonably drawn therefrom must be accepted as true.

See Aulson v . Blanchard,

, 3 (1st Cir. 1996) (stating

the “failure to state a claim” standard of review and explaining

3 that all “well-pleaded factual averments,” not bald assertions,

must be accepted as true). While I construe these allegations as

asserting claims under

, over which this court

has jurisdiction pursuant to

(a)(3), even

generously reading the complaint in favor of Dunbar, I cannot

find any claim upon which relief may be granted. See

(e)(2)(B)(ii)&(iii).

1. 5th, 6th and 14th Amendment claims

Dunbar’s assertion that he had a right to have his charges

either adjudicated or dismissed within 180 days of filing his

speedy trial requests pursuant to the 5th, 6th and 14th

amendments to the Constitution can be read to assert speedy trial

rights both under the Interstate Agreement on Detainers laws of

New Hampshire and Missouri and as a more generalized

constitutional right to speedy trial and to due process. See

Agreement on Detainers, N.H. RSA 606-A; Uniform Mandatory

Disposition on Detainers, Vernon’s Ann.Mo.Stat. 217.490. I will

address each of these areas in turn.

a. Interstate Agreement on Detainers

A prisoner incarcerated in a jurisdiction that has adopted

the Interstate Agreement on Detainers (“IAD”) as Missouri has by

4 adopting the Uniform Mandatory Disposition of Detainers, Vernon’s

Ann.Mo.Stat. 217.490, is entitled to the protections of that Act.

See Curler v . Adams,

(1981). New Hampshire

has also adopted the Act in its Agreement on Detainers, N.H. RSA

606-A. Inmates are entitled to seek injunctive relief under

to require state officials to comply with the

terms of the IAD. Cross v . Cunningham,

(1st Cir.

1996). It is axiomatic, however, that in order to be entitled to

the protections of the IAD, the plaintiff must establish that the

IAD applies to him in the first instance, and further, that the

defendants failed to follow the procedures outlined in that act.

See, e.g., Gearheart v . Wallace,

(E.D.Va.

1997)(IAD does not apply if certificate of incarceration not

filed with motion for speedy trial); Murray v . District of

Columbia,

(D.C. 1993)(IAD does not apply to

inmates who are not yet sentenced).

Although plaintiff appears to have quoted language from the

IAD in his complaint, he fails to allege the basic factual

predicate for invocation of the Interstate Agreement on

Detainers, that i s , that a detainer has, in fact, been lodged

against him in Missouri by New Hampshire law enforcement

5 officials. Further, plaintiff has failed to allege or assert

that he has followed the procedures outlined in the IAD that

would entitle him to relief. These are factual prerequisites

that cannot here be presumed on the facts presented by Dunbar,

even given the most generous reading of the complaint. See Aulson

v . Blanchard,

, 3 (1st Cir. 1996).

To the extent therefore that plaintiff’s claim for relief

depends on rights asserted under the Interstate Agreement on

Detainers, I recommend dismissal of the complaint.

b. Speedy Trial

To the extent that plaintiff alleges a violation of his

speedy trial rights under the federal constitution, I find that

the abstention doctrine outlined in Younger v . Harris,

(1971) prevents this court from taking jurisdiction of this

matter at this time, and that no recognized exceptions to that

doctrine here applies. The Younger abstention doctrine sets out

the obligation of the federal judiciary to refrain from

needlessly injecting itself into state criminal prosecutions.

Younger v . Harris,

7 , 46 (1971); Brooks v . New

Hampshire Supreme Court,

(1st Cir. 1996).

Under Younger, a federal court must abstain from reaching

6 the merits of a case if there is “(1) an ongoing state judicial

proceeding, instituted prior to the federal proceeding . . . ;

that (2) implicates an important state interest; and (3) provides

an adequate opportunity for the plaintiff to raise the claims

advanced in his federal lawsuit.” Brooks v . New Hampshire Supreme

Court,

(1st Cir. 1996).

Here, there is an ongoing criminal proceeding, as it appears

from Dunbar’s complaint that his criminal cases in the New

Hampshire state courts have not been resolved. It is difficult

to imagine any more compelling state interests than the

prosecution of criminal cases and the litigation of the rights of

the parties to such an action resolving disputes by application

of the laws and review procedures of New Hampshire. Finally,

Dunbar only alleges that he has not received responses to his

several motions for speedy trial and to dismiss. This

allegation, without more, is insufficient to indicate that there

is no adequate remedy available to him in the state courts.

Indeed, if Dunbar was not entitled to be returned to New

Hampshire via the IAD, there is no indication that he has yet

been submitted to the jurisdiction of the state courts. There is

likewise no allegation made here that such a submission would not

7 serve to vest him with an adequate opportunity to raise any

speedy trial claims he may have in the state court.

To obtain federal injunctive relief that would serve to

impede a state court proceeding, the plaintiff must show the

existence of a “great and immediate” irremediable harm. Younger

v . Harris,

7 , 46 (1971); Casa Marie, Inc. v . Superior

Court of Puerto Rico,

5 2 , 263 (1st Cir. 1993).

Extraordinary circumstances warranting interference by the

federal judiciary may be found where the plaintiff demonstrates

“bad faith [prosecution], harassment or any other unusual

circumstances that would call for equitable relief.” Id. at fn 9

(citations omitted). The plaintiff here has alleged neither

great and immediate irremediable harm nor extraordinary

circumstances that would warrant this court making an exception

to the principles of abstention set out in Younger.

Therefore, to the extent plaintiff’s claims rely upon the

necessity for the federal court to enjoin ongoing state

procedures for speedy trial violations, I recommend the dismissal

of the complaint.

2. 10th Amendment claim.

The 10th Amendment to the Constitution states “[t]he powers

8 not delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the States

respectively, or to the people.” I can find nothing in Dunbar’s

complaint that asserts a violation of any right that might accrue

to him by application of the 10th amendment. For that reason, I

recommend dismissal of the 10th Amendment claim. See U.S. Const.

amend X .

3. Immunity

The plaintiff here has sued two state judges (Judge Fraser

of the Hampton District Court and Judge Hurd of the Plaistow

District Court) and two state prosecutors (the New Hampshire

Attorney General and the Rockingham County Attorney).

Judges are absolutely immune from suit for conduct within

their judicial capacities unless they act (1) outside the scope

of their judicial capacity or (2) “in the complete absence of all

jurisdiction.” Mirales v . Waco,

(1991); Stump

v . Sparkman,

(1978); Boyd v . Biggers,

(5th Cir. 1994). Although actions for injunctive relief

are not barred by the doctrine of absolute immunity,

9 1983 1 , precludes actions against judicial officers for injunctive

relief “unless a declaratory decree was violated or declaratory

relief was unavailable.”

(Supp. 1997). Dunbar

does not allege that a declaratory decree was violated or that

declaratory relief is unavailable in the state courts. Without

satisfying a basic element of the cause of action, I find that

Dunbar has failed to state a claim against either judge for

injunctive relief under

. See Roth v . United

States,

1 1 , 613 (1st Cir. 1991)(requiring plaintiff to

allege facts regarding each material element necessary to state

an actionable legal claim).

Moreover, Dunbar has not alleged facts supporting the

application of any exception to absolute judicial immunity as he

1 The statute provides in relevant part: Every person who, under color of any [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and the laws, shall be liable to that party injured in any action at law, suit in equity, . . . except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacit injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

(Supp. 1997).

10 has not claimed that the failure to respond to his motion was

outside the scope of the capacity of the judges or in the

complete absence of any jurisdiction. I therefore find that

Dunbar has failed to state a claim against either judge for

injunctive relief or monetary damages.

Under

, a prosecutor is entitled to absolute

immunity from suit for conduct associated with his prosecutorial

function. Imbler v . Pachtman,

(1976)(absolute

immunity for prosecutor’s conduct in initiation of prosecution);

Harrington v . Almy,

7 , 40 (1st Cir. 1992)(absolute

immunity for prosecutor’s conduct associated with failing to

bring charge). Further, it is well-settled that the Eleventh

Amendment bars suits against state entities and state agents

working in their official capacities unless the state has

expressly waived immunity, which has not been done by New

Hampshire for actions brought pursuant to

. See

Puerto Rico Aqueduct and Sewer Authority v . Metcalf & Eddy, Inc.,

(1993)(Eleventh Amendment bars all suits in

federal court against states or their agencies); Will v . Michigan

Dept. of State Police,

8 , 71 (1989)(holding that § 1983

does not override the Eleventh Amendment and that the state is

11 not a person within the meaning of § 1983). Therefore, I find

the defendant prosecutors are, like the defendant judges,

absolutely immune from this suit.

For these reasons, I recommend the complaint be dismissed

for failure to name a defendant who is liable to suit. See

(e)(2)(B)(iii)

Conclusion

For the reasons set forth above, I recommend that this

complaint be dismissed in its entirety for failing to state

claims upon which relief may be granted. See

(e)(2)(B)(ii)&(iii); LR 4.3(d)(1)(B)(i). If approved, the

dismissal will count as a strike against the plaintiff under

(g).

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

12 Law Committee v . Gordon,

1 , 13-14 (1st Cir. 1992);

United States v . Valencia-Copete,

, 6 (1st Cir. 1986).

James R. Muirhead United States Magistrate Judge

Date: June 2 9 , 2000

cc: P. Michael Dunbar, Sr., pro se

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