Every v . Town of Easton, et a l . CV-04-174-JD 01/06/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert Every

v. Civil N o . 04-174 JD Opinion N o .

Town of Easton et al.

O R D E R

The defendants, the town of Easton, New Hampshire and three

of its selectmen, have moved to dismiss Robert Every’s complaint

on the ground that it fails to state a claim on which relief can

be granted. Every, who filed the complaint pro s e , has filed an

objection to the motion through counsel.

Standard of Review

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is one of

limited inquiry, focusing not on “whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer

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

(1974). Accordingly, the court must take the factual

averments contained in the complaint as true, “indulging every

reasonable inference helpful to the plaintiff’s cause.” Garita

Hotel Ltd. P’ship v . Ponce Fed. Bank,

5 , 17 (1st Cir.

1992); see also Dartmouth Review v . Dartmouth Coll.,

3 ,

16 (1st Cir. 1989). In the end, the court may grant a motion to dismiss under Rule 12(b)(6) “‘only if it clearly appears,

according to the facts alleged, that the plaintiff cannot recover

on any viable theory.’” Garita, 958 F.2d at 17 (quoting Correa-

Martinez v . Arrillaga-Belendez,

9 , 52 (1st Cir. 1990)).

Background

The following salient facts are set out in Every’s complaint

and its accompanying exhibits.1 During the time of the events at

issue, Every was the Easton Chief of Police, and defendants

Robert Craven, Keith Kidder, and Robert Thibeault comprised the

town’s Board of Selectmen (“the Board”). In August 1997, Every

refused to carry out the Board’s instructions to execute a court

order mandating the removal of certain improvements from property

in the town on the stated basis that the task at issue was the

bailiwick of the sheriff’s department. The Board then failed to

issue prompt payment to Every for his work for the period between

April 1 , 1997, and June 3 0 , 1997. Following a September 2 8 ,

1997, letter from Every threatening to bring the matter to the

attention of state labor authorities, however, it appears that

1 In ruling on a motion to dismiss under Rule 12(b)(6), the court may consider documents attached to the complaint without transforming the motion into a motion for summary judgment. See 2 James Wm. Moore et a l . , Moore’s Federal Practice § 12.34[2], at 12-69—12-70 (3d ed. 2004).

2 the Board paid him for the work in question.

In early 2002, Every notified the Board of his intention to

step down as chief. In an April 2 1 , 2003, letter to the Board,

Every mentioned that he had sustained frostbite in his toes while

responding to an accident nearly ten years prior. The letter

stated that “[t]he condition is work related and if treatment is needed there should be some process to ensure its availability

before I retire.” After “injuring [his] toes” responding to

another call on April 2 3 , 2003, Every requested a workers’

compensation claim form, but the Board provided him with the

wrong one, which Every nevertheless completed. Thibeault later

discussed the claim with his own employer’s human resources

department and altered the form Every had filled out. The Board

subsequently sent a letter to the town’s workers’ compensation

carrier enclosing the altered form and expressing the conclusion that “these injuries are not recordable as qualifying for

Workers’ Compensation. Nevertheless, as Chief Every’s de facto

employer, we feel obliged to forward his claim to you.”

In addition to these actions, Every charges the Board with

unduly delaying the submission of the claim, failing to “have the

Notice of Compliance posted,” and lacking “procedures [or] even

an employee manual to follow.” He also alleges that the Board

“illegally carried [him] as an independent contractor,”

3 presumably to evade any workers’ compensation obligations.

Purporting to act pursuant to New Hampshire’s Right-to-Know Law,

Every later served the Board with a request for information

regarding his claim. The Board eventually produced copies of the

relevant minutes, but “ignor[ed] the bulk of the request.”

Every also alleges making two reports to the Board in his official capacity which it failed to place in its records. One

of these reports alerted the Board that an Easton resident had

added on to his home without a permit approximately five years

earlier. Following the next Board meeting, Craven notified Every

that the Board had considered the report but decided not to act

on i t . The report, however, was mentioned neither in the agenda

nor the minutes of the meeting in question.

After the Board later took a number of actions in response

to the complaint of another citizen (and former Board member) about construction noise and an illegal structure on a different

parcel, however, Every appeared at a Board meeting with a copy of

his original report. Two of the Board members said they had not

previously seen the document and the secretary stated that it did

not appear in the Board records. Every later e-mailed the

secretary asking her to note these facts in the minutes of that

meeting. Craven told the secretary not to accede to this request

because, among other reasons, the matter of the correctness of

4 the minutes could be taken up only at the next Board meeting.

Every appeared at that session, where his request was granted.

Every contends that “the citizens of Easton, the Easton

Police Department, and the plaintiff have been treated

unlawfully, deceptively, and in a manner that elevated [the

defendants’] personal priorities over both their oath of office and the common welfare of Easton’s taxpayers.” He asserts

abridgments of his rights to due process and equal protection

under the federal constitution and violations of

and 242. He also claims that the defendants tampered with public

records in contravention of Revised Statutes Annotated (“RSA”)

641:7. To right these wrongs, Every requests that the court

order the defendants to make $25,000 in charitable contributions,

and to pay his costs and attorneys’ fees in bringing this suit.

Discussion

The defendants seek dismissal of Every’s complaint on the

grounds that (1) in failing to allege that the defendants

deprived him of any liberty or property interest, or that their

conduct otherwise shocked the conscience, Every has not stated a

claim for abridgment of his right to due process, (2) he has

failed to allege any equal protection violation, (3) he has

failed to pursue his state-law remedies under the Right-to-Know

5 and Workers’ Compensation statutes, and (4) the criminal statutes

he invokes,

and 242 and RSA 641:7, provide no

private right of action. Every’s objection, prepared by his

attorney, ignores most of these arguments in favor of reminding

the court of general principles of pleading, e.g., “the purpose

of a Complaint is to put the Defendants on notice of Plaintiff’s claims.” Such platitudes do nothing to assist in the court in

determining whether Every’s complaint states a cause of action.

Every’s objection does not clarify whether his due process

claim encompasses procedural due process, substantive due

process, or both, but it is clear that his complaint properly

states a violation of neither. “The threshold issue in a

procedural due process action is whether the plaintiff had a

constitutionally protected property interest at stake. If [he]

did, the State could not deprive [him] of this property without due process of law under the Fourteenth Amendment.” Mard v . Town

of Amherst,

8 4 , 188-89 (1st Cir. 2003) (internal

citations omitted).

“To be sure, the Constitution affords due process

protections to public employees who possess property interests in

continued public employment.” Galloza v . Foy,

6 , 33

(1st Cir. 2004). Even assuming that Every had a property

interest in his continued tenure as police chief, however, his

6 complaint does not allege that the defendants deprived him of

this interest. Although his objection states that the defendants

“in violation of state law terminated the Chief for improper

reason [sic],” Every’s complaint and its attachments make clear

that he was not in fact terminated--he retired. Furthermore,

there is no suggestion that the retirement amounted to a

constructive discharge, i.e., that the defendants intentionally

caused “a change in [Every’s] working conditions so difficult or

unpleasant as to force him to resign.” Pedro-Cos v . Contreras,

3 , 85 (1st Cir. 1992) (quotation marks omitted).

Indeed, the exhibits submitted with the complaint establish that

Every sought to step down of his own volition due to his age.

Every’s inability to allege that the defendants deprived him of

any constitutionally protected property interest is fatal to any

procedural due process claim.2

This shortcoming also undermines any substantive due process claim Every intends to assert. Absent the infringement of a

protected property or liberty interest, a substantive due process

2 Although the complaint alleges that the defendants delayed in remitting part of Every’s wages on one occasion in late 1997, this “deprivation” does not rise to the level of a constitutional violation and, in any event, is barred by New Hampshire’s three- year statute of limitations, as the defendants point out. See, e.g., Truax v . City of Portsmouth,

,

, at *23 (D.N.H. June 1 8 , 2001).

7 claim can succeed only in the presence of conscience-shocking

conduct. E.g., Rosenfeld v . Egy,

1 , 15 (1st Cir.

2003). Every argues that the defendants’ actions, “considered in

their aggregate, clearly rise to the egregious, unacceptable,

outrageous, and conscience-shocking standard required.” The

court disagrees. Although the conscience-shocking standard has not been precisely defined, certain guidelines have evolved to

direct the analysis. Cummings v . McIntire,

4 1 , 344

(1st Cir. 2001). “Courts have held that the acts must be such as

to offend even hardened sensibilities, uncivilized and

intolerable, offensive to human dignity, or must constitute force

that is brutal, inhumane, or vicious.”

(internal citations

and quotation marks omitted).

The alleged actions of the defendants do not approach this

standard. Every complains that the Board disregarded his advice on police business, sometimes to the point of failing to place

his reports in the Board’s records, and processed his workers’

compensation claim and right-to-know request in violation of

state law. The First Circuit has repeatedly held, however, that

mere misuse or disregard of state law by public officials does

not amount to an abrogation of due process. See, e.g.,

Barrington Cove Ltd. P’ship v . R.I. Hous. & Mortgage Fin. Corp.,

, 7 (1st Cir. 2001) (“the Supreme Court itself has been

8 chary about invoking the ‘shock the conscience’ test, lest all

policymaking at the state level become routine grist for

substantive due process litigation in the federal courts”);

Malachowski v . City of Keene,

0 4 , 708 (1st Cir. 1986).

Accordingly, Every’s complaint fails to state a claim for the

violation of his right to substantive due process. Every also fails to state any equal protection claim. To

proceed on such a theory, a plaintiff must allege that “‘compared

with others similarly situated, [he] was selectively treated

. . . based on impermissible considerations such as race,

religion, intent to inhibit or punish the exercise of

constitutional rights, or malicious or bad faith intent to injure

a person.’” Barrington,

(quoting Rubinovitz v .

Rogato,

(1st Cir. 1995)). The complaint’s

only reference to the defendants’ treatment of Every compared to that of any other person is its allegation that the Board failed

to act in response to his report of an illegal structure in the

town but vigorously took up another citizen’s complaints of a

similar violation on a different parcel.

Every does not allege, however, that the variance in the

Board’s responses to the two scenarios was born of the requisite

“impermissible considerations.” Nor does he claim that the

Board’s contrasting actions were motivated by its “malicious or

9 bad faith intent” to injure him. Indeed, Every affirmatively

states that the other complaining citizen had “every right to

seek redress of grievance and the select board, given the

situation, should have acted on it--I fault no one for that.”

To proceed on an equal protection claim based on the

defendants’ improper motive, a plaintiff must allege “egregious

procedural irregularities or abuse of power.” PFZ Props., Inc.

v . Rodriguez,

8 , 32 (1st Cir. 1991). The facts set out

in Every’s complaint plainly do not satisfy this standard. See,

e.g., Hendricks v . Bald,

0 ,

, at *4

(D.N.H. Mar. 1 2 , 2002) (dismissing equal protection claim based

on defendants’ failure to respond to plaintiffs’ complaints of

illegal activity on neighboring property).

In response to the defendants’ argument that their alleged

violations of state criminal statutes do not entitle Every to any

relief, he asserts that “it is unconscionable that a criminal act that carries no civil penalties accruing to the aggrieved would

disallow their use in proving violations of both civil rights and

federal statutory claims for damages and attorneys [sic] fees.”3

The court takes this statement to mean that Every does not intend

3 To the extent Every intends to assert independent claims under

and 2 4 2 , he cannot do s o . See Cok v . Cosentino,

, 2 (1st Cir. 1989) (“These statutes do not give rise to a civil action for damages.”)

10 to assert a claim against the defendants under RSA 641:7

independent of his due process and equal protection claims, but

wants to treat the alleged violation of the state criminal

statute as giving rise to a claim under federal law. Every also

argues that, despite whatever state-law rights he may have under

the New Hampshire workers’ compensation and right-to-know statutes, “[t]he remedies are not exclusive and cannot fully

redress [him] in this matter.”

“It is not enough simply to give . . . state law claims

constitutional labels such as ‘due process’ or ‘equal protection’

in order to raise a substantial federal question under section

1983.” PFZ Props.,

(internal quotation marks

omitted). Thus, even if the court were to read Every’s complaint

as alleging actionable violations of the various state statutes

he invokes, and his exhaustion of the various administrative remedies they provide, any such claims would sound in state, not

federal, law. Because Every has failed to assert any viable

cause of action under federal law, the court declines to exercise

supplemental jurisdiction over any state law claims he may have

pled. See Lares Group, II v . Tobin,

1 , 45 (1st Cir.

2000); Newman v . Burgin,

(1st Cir. 1991).

11 Conclusion

For the foregoing reasons, the defendants’ motion to dismiss

(document n o . 4 ) is granted. The court notes that Every’s motion

“to file an Amended Complaint should any portion of his Complaint

be found inadequate by this Court, within thirty days of the

Court’s order” was granted with the defendants’ assent on September 7 , 2004. Every’s counsel is reminded that any amended

complaint he elects to file must comply with the strictures of

Fed. R. Civ. P. 1 1 , keeping in mind the well-established

principles of civil rights law articulated in this order.

SO ORDERED.

Joseph A . DiClerico, J r . United States District Judge January 6, 2005

cc: Mark T . Broth, Esquire Kenneth E . Charbuck, Esquire

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