Nawrocki v . Wilson, et a l . 10-CV-304-SM 09/28/10 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Dr. Steven P. Nawrocki, Plaintiff

v. Civil N o . 10-cv-304-SM Opinion N o .

Donald W . Wilson; Margaret R. Wilson; Firoze Katrak; Katrak Trust; Shankhassick Shorefront Association, Inc.; Cheney-England Limited Partnership; Walter Cheney; Brand Revocable Trust; Gerhard K. Brand; Ingeburg C . Brand; and the State of New Hampshire LCIP Program; Defendants

O R D E R

Seeking declaratory relief, injunctive relief, and monetary

damages, Steven Nawrocki brought suit against eleven private and

public defendants, including several of his neighbors in a

residential development called Shankhassick on Great Bay

(“Shankhassick”). The complaint asserts that defendants have

allowed tree growth that both blocks the view of Great Bay from

his property and diminishes the habitat of the New England

cottontail rabbit – an endangered species and an important source

of food for local bald eagles. Nawrocki invokes the provisions

of

, 1982, 1983, 1985(1), 1985(2), 1985(3),

1986, and 1988(b), 1 and claims that defendants have violated his

1 Section 1988 does not provide a cause of action but, rather, is a vehicle for the recovery of attorney’s fees by parties prevailing in claims brought under §§ 1981, 1981a, 1982, 1983, 1985, and 1986. rights under the First, Fifth, and Fourteenth Amendments to the

United States Constitution.

Before the court are four motions to dismiss. All

defendants have either moved to dismiss, or joined in another

defendant’s motion to dismiss. Nawrocki objects. One defendant,

the State of New Hampshire LCIP program, is immune from suit, and

Nawrocki has failed to state a cognizable claim upon which relief

can be granted against any of the other defendants. All

defendants, therefore, are entitled to dismissal of Nawrocki’s

respective claims against them.

Background

Nawrocki’s property, Lot VIII in the Shankhassick

development, is located on the north side of Bay Road. The

pertinent deeds include a line-of-sight easement that benefits

Lots VIII and IX, and encumbers Lots III and IV. That easement

prohibits structures, trees, or shrubbery on Lots III and IV that

would diminish the view of Great Bay from Lots VIII and IX. The

easement also entitles the owners of Lots VIII and IX to cut and

remove vegetation from Lots III and IV for the purpose of

maintaining a view of Great Bay.

The Cheney-England Limited Partnership, of which Walter

Cheney is presumably a partner, developed Shankhassick. The

2 Shankhassick Shorefront Association, Inc. (“the Association”) is

an association of Shankhassick property owners. The Wilsons,

Katrak, and the Brands all appear to own or occupy properties on

the south side of Bay Road. (While it is not clearly spelled out

in the complaint, it would appear that the Katrak and Brand

trusts own the properties occupied by Katrak and the Brands.)

Collectively, Nawrocki refers to those who own properties on the

south side of Bay Road as “shoreliners,” “shorelanders,” or

“wetlanders,” to distinguish them from the “hillsiders” such as

himself, who own properties on the north side of Bay Road. The

New Hampshire LCIP program once acquired a conservation easement

on some part of Shankhassick.

Nawrocki claims that defendants, both individually and

collectively, are violating his property rights under the federal

constitution by allowing the growth of vegetation that blocks his

view of Great Bay, and by interfering with his attempts to trim

that vegetation. He also claims that his federal constitutional

rights have been violated by the construction of one or more

driveways (on properties owned by one or more defendants) that

further block his view because they do not comply with the

subdivision’s engineering plans and/or government permits. He

also appears to complain about various defendants’ failure to cut

or trim trees along Bay Road. Finally, Nawrocki asserts that

various defendants have not met their responsibilities to

preserve the habitat of the New England cottontail rabbit, an

3 important source of food for a population of bald eagles

inhabiting a federally owned sanctuary adjacent to Shankhassick.

Firoze Katrak and the Katrak Trust move to dismiss on

grounds that the court lacks subject-matter jurisdiction over

Nawrocki’s claims. See F E D . R . C I V . P . 12(b)(1). The State of

New Hampshire argues that it is immune from suit, under the

Eleventh Amendment, that the court lacks subject-matter

jurisdiction over Nawrocki’s claims against i t , and that

Nawrocki’s complaint fails to state a claim upon which relief can

be granted. See F E D . R . C I V . P . 12(b)(6). In its motion to

dismiss, the Association invokes both Rule 12(b)(1) and Rule

12(b)(6). The Wilsons adopt and incorporate the motions and

memoranda filed by the Katrak defendants and the Association.

Discussion

“Federal courts are courts of limited jurisdiction. A cause

of action may be maintained in federal court only if it involves

a question of federal law, or if the controversy is between

citizens of different states and the amount in controversy

exceeds $75,000.” Hall v . Curran,

0 , 71 (1st Cir.

2010) (citing 28 U . S . C . §§ 1331, 1332). Nawrocki does not invoke

the court’s diversity jurisdiction, nor could h e , as he asserts

that all defendants are citizens of New Hampshire. See 28 U . S . C .

§ 1332. That leaves the existence of a federal question as the

4 only potential basis upon which this court might exercise

subject-matter jurisdiction.

“[F]ederal district courts [have] original jurisdiction over

‘all civil actions arising under the Constitution, laws, or

treaties of the United States.’ ” R.I. Fishermen’s Alliance,

Inc. v . R.I. Dep’t of Envtl. Mgmt.,

2 , 47 (1st Cir.

2009) (quoting

). Here, Nawrocki asserts that

his claims arise under identified federal laws,

, 1982, 1983, 1985(1), 1985(2), 1985(3), and 1986, and that

defendants have violated his rights under the federal

constitution. That is enough to confer subject-matter

jurisdiction:

[T]here are two types of actions that fall within the encincture of federal question jurisdiction. The first (and most familiar) category involves direct federal questions; that i s , suits in which the plaintiff pleads a cause of action that has its roots in federal law (say, a claim premised on the United States Constitution or on a federal statute).

at 48 (citing Am. Well Works C o . v . Layne & Bowler Co.,

(1916); Almond v . Capital Props., Inc.,

0 , 23 (1st Cir. 2000).

Although the court has subject-matter jurisdiction over

Nawrocki’s claims, still, all defendants are entitled to

dismissal, because Nawrocki’s complaint fails to state a claim

5 upon which relief can be granted. A motion to dismiss for

“failure to state a claim upon which relief can be granted,” F E D .

R . C I V . P . 12(b)(6), requires the court to conduct a 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, 416 U . S . 232, 236

(1974). That i s , the complaint “must contain ‘enough facts to

raise a reasonable expectation that discovery will reveal

evidence’ supporting the claims.” Fantini v . Salem State Coll.,

2 , 26 (1st Cir. 2009) (quoting Bell Atl. Corp. v .

Twombly, 550 U . S . 544, 556 (2007)).

When considering a motion to dismiss under Rule 12(b)(6), a

trial court “assume[s] the truth of all well-plead facts and

give[s] the plaintiff[s] the benefit of all reasonable inferences

therefrom.” Vernet v . Serrano-Torres,

(1st

Cir. 2009) (quoting Ruiz v . Bally Total Fitness Holding Corp.,

, 5 (1st Cir. 2007)). Moreover, because Nawrocki is

proceeding pro s e , his complaint must be viewed with some

deference. See Johnson v . Rodriguez,

(1st Cir.

1991) (“In interpreting the complaint before u s , we construe it

liberally in an effort to accommodate a pro se litigant.”)

(citing Estelle v . Gamble, 429 U . S . 9 7 , 106 (1976); Ayala Serrano

v . Lebron Gonzalez,

, 12 (1st Cir. 1990)).

6 “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Sutliffe v . Epping Sch.

Dist.,

(1st Cir. 2009) (quoting Ashcroft v .

Iqbal, 129 S . C t . 1937, 1949 (2009)). On the other hand, a Rule

12(b)(6) motion should be granted if “the facts, evaluated in [a]

plaintiff-friendly manner, [do not] contain enough meat to

support a reasonable expectation that an actionable claim may

exist.” Andrew Robinson Int’l, Inc. v . Hartford Fire Ins. Co.,

8 , 51 (1st Cir. 2008) (citations omitted).

For purposes of determining whether Nawrocki has stated a

claim, all defendants, other than the State of New Hampshire LCIP

program, are similarly situated. In the interest of brevity, the

following discussion is divided into two parts. The first

discusses the private-entity defendants; the second considers the

State of New Hampshire LCIP program.

A . The Private-Entity Defendants

proscribes discrimination based on race.

Because Nawrocki does not claim that any of the private-entity

defendants discriminated against him on account of his race, he

plainly has not stated a claim against those defendants under

§ 1981. See Fantini, 557 F.3d at 33-34 (“[s]ection 1981 offers

relief when racial discrimination blocks the creation of a

7 contractual relationship, as well as when racial discrimination

impairs an existing contractual relationship”) (quoting Domino’s

Pizza, Inc. v . McDonald,

(2006)).

also proscribes racial discrimination. See

Malik v . Cont’l Airlines Inc., 305 Fed. App’x, 165, 169 (5th Cir.

2008) (“A cause of action based upon section 1982 . . . requires

an intentional act of racial discrimination”) (quoting Vaughner

v . Pulito,

(5th Cir. 1986)). Because Nawrocki

does not allege racial discrimination, he has plainly failed to

state a claim against the private-entity defendants under § 1982.

Nawrocki’s claim under § 1983 is equally infirm. That

statute provides, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .

“[T]o plead a viable section 1983 claim, a complaint must allege

action under color of state law.” McCloskey v . Mueller,

(1st Cir. 2006) (citing Redondo-Borges v . U.S. Dep’t of

Hous. & Urban Dev.,

, 7 (1st Cir. 2005); Rogan v . City

8 of Boston,

4 , 27 (1st Cir. 2001)). 2 Nawrocki has not

alleged that any private-entity defendant, at any time relevant

to any of his claims, was a “person [acting] under color of any

statute, ordinance, regulation, custom, or usage, of any State or

Territory . . .”

. Accordingly, he has not

stated a cognizable claim under § 1983 against any of the

private-entity defendants.

Nawrocki also fails to state a claim under § 1985. He

alleges no facts supporting a claim under § 1985(1), which is

directed toward protecting officers of the United States. See

Donahue v . City of Boston,

, 122 n.9 (1st Cir. 2002)

(Ҥ 1985(1) protects federal officers from those conspiring to

prevent (by force, intimidation, or threat) the officer from

discharging his or her duties”). Likewise, Nawrocki alleges no

facts supporting a claim under § 1985(2), which is intended to

prevent the obstruction of justice by protecting parties to

litigation, witnesses, and jurors. See id. (Ҥ 1985(2) protects

parties and witnesses in federal court from conspiracies to deter

them from appearing or testifying”). Nawrocki’s claim under

§ 1985(2) necessarily fails because the two alleged threats upon

2 Nawrocki argues to the contrary: “1983 can be used against conduct by private parties. It is not limited to the action taken under color of state law.” (Compl., at 22.) He is mistaken, and the case on which he relies, Patterson v . McLean Credit Union,

(1989), involves § 1981, not § 1983.

9 which it is based were directed to persons who, at the time of

the alleged threats, were not involved in federal (or state)

litigation as parties, witnesses, or jurors.3 Finally,

Nawrocki’s claim under § 1985(3) also fails. “It has long been

established that a claim under § 1985(3) requires ‘some racial,

or perhaps otherwise class-based, invidiously discriminatory

animus behind the conspirators’ action.’ ” Pérez-Sánchez v . Pub.

Bldg. Auth.,

(1st Cir. 2008) (quoting Griffin

v . Breckenridge,

8 , 102 (1971)). In his complaint,

Nawrocki asks: “Are we hillsiders, who have paid extra and taxes

for our waranteed deeds, our own class?” (Compl., at 23.) The

short answer i s , not for these purposes. Property owners with

obstructed views do not comprise a class that § 1985(3) was

enacted to protect. See Pérez-Sánchez,

.

Thus, Nawrocki fails to state a claim under § 1985(3).

Because Nawrocki alleges no conduct actionable under § 1985,

he fails to state a claim under § 1986. See Maymí v . P.R. Ports

Auth.,

0 , 31 (1st Cir. 2008) (“absent a showing of

conspiracy, [plaintiff] has no claim under § 1986, which extends

3 Nawrocki’s claim under § 1985(2) seems to be based upon allegations that: (1) an attorney for the daughters of Ingeburg and Gerhard Brand threatened him by sending him a letter stating that the Brands would enforce their legal rights against him if he came onto their property again without their express permission or if he defamed Gerhard Brand; and (2) Donald Wilson threatened Nawrocki’s agent, John Allen, with a chainsaw while Allen was cutting trees on Nawrocki’s behalf.

10 liability to those who knowingly failed to prevent conspiracies

under § 1985”).

In summary, Nawrocki fails to state a claim against any of

the private-entity defendants under any of his federal civil

rights theories. Accordingly, those ten defendants are entitled

to dismissal of all of Nawrocki’s claims against them.

B . State of New Hampshire LCIP Program

Nawrocki’s claim against the State of New Hampshire LCIP

program (“LCIP”) is difficult to understand. It appears to be

based upon LCIP’s alleged failure to enforce an easement it once

held with respect to a portion of the Shankhassick development.4

The only relief Nawrocki seeks from LCIP is money damages. (See

Compl., at 46-48.) Nawrocki fails to state a claim against LCIP,

and, his claim against that agency is also subject to dismissal

because both the State of New Hampshire and the state’s LCIP

program are immune from suit.

The Eleventh Amendment to the United States Constitution

provides that “[t]he Judicial power of the United States shall

4 I f , as it seems, Nawrocki is basing his claim against LCIP on § 1983, he does not explain how the LCIP’s alleged failure to enforce an easement (purportedly for the protection of bald eagles) might constitute a violation of his “rights, privileges, or immunities secured by the Constitution and laws” of the United States.

.

11 not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States by

Citizens of another State, or by Citizens or Subjects of any

Foreign State.” The Supreme Court “has consistently held that an

unconsenting State is immune [under the Eleventh Amendment] from

suits brought in federal courts by her own citizens as well as by

citizens of another State.’ ” P.R. Aqueduct & Sewer Auth. v .

Metcalf & Eddy, Inc.,

(1993) (quoting Edelman

v . Jordan,

(1974)). “Absent waiver, neither

a State nor agencies acting under its control may ‘be subject to

suit in federal court.’ ” P.R. Aqueduct,

(quoting Welch v . Tex. Dep’t of Highways & Pub. Transp.,

(1987)). Immunity is available “regardless of the

relief sought.” P.R. Aqueduct,

(citing Cory v .

White,

5 , 91 (1982)).

A state can waive its Eleventh Amendment immunity to suit.

See New Hampshire v . Ramsey,

, 15 (1st Cir. 2004).

But, Nawrocki alleges no facts that might support a finding that

the State of New Hampshire or LCIP waived the state’s Eleventh

Amendment immunity from suit. Indeed, the State is invoking its

immunity. Accordingly, the State of New Hampshire’s LCIP program

is entitled to dismissal of Nawrocki’s claims against i t .

12 Conclusion

For the reasons given, defendants’ motions to dismiss

(document nos. 7 , 9, 1 8 , and 20) are granted. Under some

circumstances, it might be appropriate to grant a motion to

dismiss a pro se complaint without prejudice, and with leave to

amend to cure identified deficiencies. But here, granting

Nawrocki leave to amend would prove to be an exercise in

futility. Review of the material attached to Nawrocki’s

complaint establishes, beyond any doubt, that there are no

factual bases upon which he might “state a claim to relief that

is plausible on its face.” Iqbal, 129 S . C t . at 1949 (quoting

Twombly, 550 U.S. at 5 7 0 ) . Any cognizable claims Nawrocki might

have against the defendants under the described circumstances are

claims arising under state law. Accordingly, Nawrocki’s

complaint is dismissed with prejudice, and without leave to

amend. See Chaing v . Skeirik,

(1st Cir. 2009)

(district court did not abuse its discretion by denying leave to

file amended complaint, when amendment would have been futile).

The pending motions for a more definite statement (document nos.

3 , 2 1 , and 28) are denied as moot, as is the Brand defendants’

conditional motion to strike (document n o . 4 ) . The clerk of the

court shall enter judgment in accordance with this order and

close the case.

13 SO ORDERED.

September 2 8 , 2010

cc: Steven P. Nawrocki, pro se Michael E . Chubrich, Esq. Stephen J. Dibble, Esq. Malcolm R. McNeill, Jr., Esq. Keriann Roman, Esq. Nancy J. Smith, Esq. Christopher A . Wyskiel, Esq.

14