UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Peter Macdonald

v. Civil No. 18-cv-1100-JL Opinion No.

Strafford County Sup. Court Tina L. Nadeau Mark E. Howard Town of Lee, NH

MEMORANDUM ORDER

In this zoning case, plaintiff Peter Macdonald seeks to

overturn decisions rendered in the Strafford County Superior

Court. He alleges that members of the Court conspired with the

Town of Lee to oppress his religious organization and seeks

relief under the Constitution and anti-discrimination statutes,

as well as substantial damages. Even setting aside serious

standing concerns, Macdonald’s claims against the individual

judges and the Superior Court are barred by judicial immunity,

the Rooker-Feldman doctrine, and the Eleventh Amendment. His

claims against the Town of Lee must be dismissed by a

combination of the Rooker-Feldman and res judicata doctrines and

for failure to allege sufficient facts to state a claim.

Applicable legal standard

Defendants may move to dismiss a case for several reasons,

including lack of subject-matter jurisdiction, Fed. R. Civ. P. 12(b)(1), and failure to state a claim upon which relief can

be granted. Fed. R. Civ. P. 12(b)(6).

In assessing whether a plaintiff has alleged sufficient

facts to show jurisdiction or state a claim, the court must

“take the complaint’s well-pleaded facts as true,” and “draw all

reasonable inferences in the plaintiff’ favor.” Barchock v. CVS

Health Corp.,

(1st Cir. 2018) (Rule 12(b)(6)

motion); see Valentin v. Hospital Bella Vista,

(1st Cir. 2001) (Rule 12(b)(1) sufficiency challenge). A

complaint must “contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.”

SEC v. Tambone,

(1st Cir. 2010).

But “[w]ell-pleaded facts must be ‘non-conclusory’ and

‘non-speculative.’” Barchock,

. “If the factual

allegations in the complaint are too meager, vague, or

conclusory to remove the possibility of relief from the realm of

mere conjecture, the complaint is open to dismissal.”

Documents outside of the pleadings are generally not

considered in ruling on a motion to dismiss. Flores v. OneWest

Bank, F.S.B.,

(1st Cir. 2018). But the court

may consider documents attached to or explicitly incorporated in

the complaint, and “narrow exceptions [exist] for documents the

authenticity of which are not disputed by the parties; for

official public records; for documents central to plaintiffs’

2 claim; or for documents sufficiently referred to in the

complaint.”

(quoting Watterson v. Page,

(1st

Cir. 1993)). The parties’ filings and Superior Court’s orders

attached to the Town of Lee’s motion to dismiss fall within

these exceptions, and Macdonald has not objected to their

inclusion, so the court will consider them.

Background

A. Veteran Resort-Chapel

Macdonald is a United States Marine Corps veteran. He is

the leader of the Veteran Resort-Chapel (“VRC”), a nonprofit

corporation registered in New Hampshire.1 He alleges that the

VRC is a church begun in 1980.2 In 2013, Macdonald and his wife

Agnes S. Macdonald conveyed to VRC a property at 101 Stepping

Stones Road in Lee, New Hampshire.3 The deed provided that the

property would revert to the Macdonalds or their heirs,

1 The New Hampshire Department of State’s directory indicates that VRC was registered in 2012. Between 2014 and 2015, it operated as “Veterans Village NH” before reverting to the name VRC. In September of 2018, VRC amended its name to “Veterans Church of God.” See NH Dep’t of State QuickStart, https://quickstart.sos.nh.gov/. The parties have briefed the motions to dismiss using the name VRC; the court does likewise. 2 Compl. (doc. no. 1) ¶ 1. 3 Warranty Deed, attached to Compl. (doc. no. 1) at 7-9. The briefing and documents provided to the court contain varied spellings of “Stepping Stones Road,” but none of the differences are material or relevant.

3 successors, or assigns if VRC were ever dissolved and not

revived within 6 months or if land ceased to be used as either

“a place for veterans of the United States Armed forces to live

free of charge; or as a place for veterans of the United States

Armed Forces to express and practice their religious beliefs.”4

Macdonald and VRC’s efforts to use the property as a haven for

homeless veterans have led to numerous disputes with the Town of

Lee, including zoning and permitting issues. See, e.g.,

Veterans Village of New Hampshire v. Town of Lee, 14-cv-279-SM

(D.N.H. filed June 24, 2014) (concerning property-tax

exemption); Veterans Village of NH v. Lee Zoning Board of

Adjustment, 13-cv-356-JL (D.N.H. filed Aug. 7, 2013)(concerning

septic-system requirements and compost toilets).

B. 2015 settlement agreement

In 2014, the Town of Lee sued Macdonald and VRC in

Strafford County Superior Court, seeking to enforce the town’s

zoning ordinance against various violations related to VRC

allowing a person to live in a camper on the property.5 In early

2015, the Superior Court issued a judgment and stipulation

4

. 5 This case was docketed as #219-2014-CV-00220.

4 document in the case, signed by the Town of Lee and Macdonald,

for both himself and VRC.6

Under the judgment, Macdonald and VRC were to pay the town

$10,000 by February 1, 2016.7 They also agreed not to build any

structure without a building permit or violate any zoning

ordinance of the town.8 The judgment specifically enjoined

Macdonald and the VRC from erecting signage on the property

without a permit, permitting permanent or temporary

accommodations in any structure on the property without town

approval, or permitting the use or storage of any “temporary

toilet/out-house/porta-potty” on the property without the

express written permission of the town.9 If any of these

specific violations were discovered and not cured, the judgment

provided that the town could file a Motion to Enforce the

Settlement Agreement. If the town prevailed, it would be

entitled to statutory fines under

,I which, along with attorney’s fees, would constitute a

post-judgment attachment on the property.10 Finally, the

6 Judgment and Stipulation (doc. no. 4-2). 7 Id. ¶¶ 2-6. 8 Id. ¶¶ 8, 12. 9 Id. ¶ 9. 10 Id. ¶¶ 10-11.

5 stipulated judgment provided that “[b]y entering into this

agreement, [Macdonald and VRC] give up no rights under the

zoning ordinance or state or federal law and they reserve their

right to present any and all such claims or defenses in court or

any other venue.”11

The town later moved to enforce the settlement agreement

based on its claim of an unpermitted sign. It also moved for a

writ of execution after Macdonald and VRC failed to pay the

$10,000 required by the judgment. The Superior Court granted

both motions on March 4, 2016.

zoning appeal and consolidation

Later in 2016, VRC filed a site review application with the

town seeking to build a “single person church” on the property.

The town’s Planning and Zoning administrator determined that

application was not in fact for a church, but was instead for

impermissible lodging quarters, and so denied the application.

On December 7, 2016, the town’s Zoning Board of Adjustment

affirmed that decision.13

11 Id. ¶ 15. 12 Superior Ct. Order of Mar. 4, 2016 (doc no. 4-3). 13See Superior Ct. Final Order of Nov. 13, 2017 (doc. no. 4-8) at 5.

6 On December 12, 2016, VRC, represented by Macdonald,

appealed the Zoning Board of Adjustment’s decision to the

Strafford County Superior Court.14 VRC sought a ruling that VRC

is a church, that VRC could build a church on the property in

accordance with zoning regulations, and that VRC could build

“religious reading rooms AKA solo Churches” on the property. It

also sought $1.15 million from the town, “as they agreed by

default” in consideration for zoning meetings that VRC attended

in support of its application.15

Around the same time, the town again moved to enforce the

2015 settlement agreement, alleging that VRC housed individuals

on the property in violation of the zoning ordinance and the

settlement agreement.16 The Stafford County Superior Court

consolidated this reopening of the settled case with VRC’s new

zoning appeal. After a hearing on the consolidated cases, the

Superior Court dismissed VRC’s claims for damages, but allowed

post-hearing briefing on the remaining issues.17

14Appeal of ZBA Decision (doc. no. 4-6). This appeal was docketed as 219-2016-CV-455. 15 Id. at 5. 16See Superior Ct. Final Order of Nov. 13, 2017 (doc. no. 4-8) at 3-7. 17Superior Ct. Order on Post-Hearing Briefing and the Town’s Motion to Dismiss Damage Claim of June 8, 2017 (doc. no. 4-7).

7 On November 13, 2017, after the briefing, the Superior

Court issued a “Final Order,”18 finding that VRC had breached the

settlement order by constructing tiny homes without permits and

allowing people to sleep there.19 Applying the settlement

agreement and

,I, the Court imposed

a penalty of $70,675 as a post-judgment attachment on the

property, and assessed costs and attorney’s fees.20

The Superior Court also affirmed the Zoning Board of

Adjustment’s decision. It found that, for the purposes of the

town’s zoning ordinance, VRC is not a church. As “church” is

not a defined term in the ordinance, it looked to the common and

approved usage, citing several dictionaries and finding that VRC

lacked the commonly understood hallmarks of a church.21 The

Superior Court rejected VRC’s arguments that an organization is

a church for zoning purposes if it is registered as a tax-exempt

religious organization with the state and federal government.22

Furthermore, the Superior Court affirmed the Zoning Board, in

the alternative, because VRC was bound by the limitations on

18 Superior Ct. Final Order of Nov. 13, 2017 (doc. no. 4-8). 19 Id. at 6. 20 Id. at 7. 21 Id. at 8-10. 22 Id. at 10.

8 human occupancy in the settlement agreement. Even if VRC itself

is a church, the Superior Court reasoned, the proposed

structures were clearly not “churches.”23

The Superior Court also rejected Macdonald and VRC’s

contention that the Zoning Board decision violated the land use

provision of the Religious Land Use and Institutionalized

Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc(a). RLUIPA limits

land use regulations that impose “a substantial burden on the

religious exercise of a person, including a religious assembly

or institution.” Id. The Superior Court found both that VRC’s

effort to construct tiny homes for veterans did not constitute

“religious exercise” and that there was no evidence that

requiring compliance with the town’s zoning ordinance imposed a

“substantial burden” within the meaning of RLUIPA.24

D. Writs and sheriff’s sale

A month later, the town filed an ex parte motion for a

judgment lien against the property in the amount of $93,447.95,

reflecting that statutory fines plus costs and attorney’s fees.25

The town moved ex parte because Macdonald had told the media

23 Id. at 8 n.2. 24Superior Ct. Final Order of Nov. 13, 2017 (doc. no. 4-8) at 10-11. 25 Verified Ex Parte Motion for Judgment Lien (doc. no. 4-9).

9 that he was attempting to sell the property, which could

frustrate the town’s recovery. The Superior Court granted the

motion. It also approved the amount of attorney’s fees and

denied various motions to reconsider the final order.26

Clerks of the Superior Court issued a writ of attachment

and later a writ of execution against the property of Macdonald

and VRC.27 These writs were “witnessed” by the Chief Justice of

the Superior Court.28 The Superior Court presiding over the case

rejected several attempts by Macdonald and VRC to void these

writs and approved the town’s request for a sheriff’s sale of

26Superior Ct. Order on Post-Decision Motions of January 20, 2018 (doc. no. 4-10). 27 Attachments to Compl. (doc. no. 1) at 10-11, 13. 28The Chief Justice of the Superior Court’s name is printed on the writs as witness. Writs issued by New Hampshire courts “shall be in the name of the state of New Hampshire, shall be under the seal of the court, shall bear the teste of the chief, first, senior or other justice of the court who is not a party” and be signed by the clerk. N.H. Rev. Stat. § 509:2; N.H. Const., pt. II, art. 87. The justice’s witness is “in practice a mere matter of form.” Opinion of the Justices,

(1979) (quoting Parsons v. Swett,

(1855)). These requirements were intended to differentiate state writs from royal writs, not to require a substantive review of the merits underlying the writ by the witnessing justice. See

(explaining that by 1855 it was standard practice to print the chief justice’s name onto blank writs).

10 the property.29 At the sheriff’s sale, Macdonald attempted to

submit a bid. It was refused.30

E. Federal complaint

Macdonald filed this suit on November 29, 2018, challenging

several of the Superior Court’s actions.31 He alleges that the

Chief Justice, the presiding judge, and the town conspired

against him and VRC in various ways. Macdonald objects to the

determination that VRC is not a church for zoning purposes and

argues that VRC meets all the guidelines provided by the

Internal Revenue Service for determining church status for

federal tax purposes. He contends that the town has

discriminated against him and VRC in violation of RLUIPA, the

First Amendment, and the Americans with Disabilities Act

(“ADA”).32

Macdonald also alleges that the Chief Justice’s involvement

in the case represents a conflict of interest because she is a

resident of the town and knows Macdonald.33 He alleges that the

29Superior Ct. Notices of Decision (doc. no. 4-11, 4-12, and 4- 13). 30 Compl. (doc. no. 1) ¶ 6. 31Id. The complaint is dated both November 18, 2018 and December 3, 2018, but was filed on November 29, 2018. 32 Id. ¶¶ 1-2. 33 Id. ¶ 3.

11 Chief Justice and the presiding judge violated various

constitutional provisions and the ADA by consolidating the two

cases, ruling for the town, and rejecting Macdonald’s objections

to the writs and sheriff’s sale.34

For relief, Macdonald requests the recognition of VRC as a

church and religious organization, discipline of both state

judges, $20 million each from the Strafford County Superior

Court and town based upon “default signed” contracts, and other

damages.35 All defendants have moved to dismiss his complaint.36

Analysis

The defendants argue that Macdonald’s claims must be

dismissed because of the Rooker-Feldman and res judicata

doctrines, judicial immunity, the Eleventh Amendment, and

failure to state a claim upon which relief can be granted. The

Court agrees, but addresses two preliminary issues. First,

Defendants’ motions to dismiss are not void even though they

misspell Macdonald’s name and the name of his organization,

34Id. ¶¶ 2-9. Macdonald also argues that he was entitled to a jury trial. But “[t]he Supreme Court has consistently held that states are not constitutionally required to provide a jury trial in civil cases.” Gonzalez-Oyarzun v. Caribbean City Builders, Inc.,

(1st Cir. 2015). 35 Compl. (doc. no. 1) at 6. 36Chief Justice Nadeau, Judge Howard, and the Superior Court’s Mot. to Dismiss (doc. no. 3); Town of Lee’s Mot. to Dismiss (doc. no. 4).

12 because the errors did not impair Macdonald’s notice of the

motions. Second, Macdonald lacks standing to assert claims that

rely entirely on injuries to VRC, which is not a plaintiff and

cannot be represented pro se by Macdonald. But because all of

Macdonald’s claims must be dismissed for other reasons, the

Court does not further evaluate standing.

A. Misspellings

Macdonald argues that the defendants’ motions to dismiss

are void because they misspelled his name and the name of VRC.37

Macdonald spells his surname with an “a” in “Mac” and a lower-

case first “d.” VRC’s full name is Veteran Resort-Chapel, with

no “s” at the end of “Veteran”. Portions of the defendants’

motions and documents from the Superior Court proceedings,

however, refer to “Peter McDonald,” “Peter MacDonald,” or the

“Veterans Resort-Chapel.”38 The court understands Macdonald’s

frustration with these inaccuracies, but he has not shown that

they have had any material or prejudicial effects. If “a

document containing a discrepancy or variation in the spelling

of a name still put[s] the party against whom the document is to

be applied on adequate notice of the obligations or consequences

37 See, e.g. Mot. for Summ. J. (doc. no. 9) ¶ 3. 38The defendants have apologized for these misspellings. Mot. to Stay Pl.’s Mots. For Summ. J. (doc. no. 12) at 2, fn.2.

13 flowing from it,” the inaccuracies do not render the document

void. See Brady v. Mullen,

, 71–72 (1994).

Macdonald clearly received notice of the motions to dismiss and

understood their intended effect, because he responded to them.39

B. Standing

The town has raised serious questions about Macdonald’s

standing to bring several of his claims. Most of Macdonald’s

claims involve the rights of VRC and seek relief for VRC, but

VRC is not a plaintiff in this case. In two earlier cases, VRC,

represented by Macdonald, filed complaints in state court which

the town removed to this court. On both occasions, this court

ultimately dismissed the actions because VRC failed to obtain

qualified legal counsel and the law does not allow Macdonald to

represent VRC, a non-profit corporation, pro se. See Veterans

Village of NH v. Lee Zoning Board of Adjustment, 13-cv-356-JL

(D.N.H. July 22, 2014); Veterans Village of New Hampshire v.

Town of Lee, 14-cv-279-SM (D.N.H. September 8, 2014) (McAuliffe,

J.). If VRC were a plaintiff in this action, it would need to

be represented by counsel, not by Macdonald.

39The court does not reach Macdonald’s arguments that the writs of attachment and execution were similarly void, for the reasons explained infra Part III.C-D. But the same logic would likely apply. Macdonald has not alleged that he or any other relevant party lacked notice because the writs referred to “Peter MacDonald” and the “Veterans Resort-Chapel.”

14 Macdonald cannot sidestep this problem by bringing the case

in his own name while asserting claims belonging to VRC and

seeking relief for VRC. A plaintiff must have standing to bring

claims, and “must not only allege injurious conduct attributable

to the defendant but also must allege that he, himself, is among

the persons injured by that conduct.” Hochendoner v. Genzyme

Corp.,

, 731–32 (1st Cir. 2016) (citing Lujan v.

Defs. of Wildlife,

(1992)). Macdonald has

certainly alleged that VRC was harmed by the Superior Court’s

rulings and by the town’s treatment of the property, but he has

not shown that all of these actions separately injured him.

Macdonald does allege some injuries to himself, however.

The writs of attachment and executions, for instance, both name

Macdonald as well as VRC. Macdonald thus may have standing to

raise claims related to these writs in his own name. But he

does not have standing to raise claims that solely involve

injuries to VRC. The court need not, however, delve into

precisely which claims Macdonald has standing to bring. As

explained below, the court finds that all the claims must be

dismissed for other reasons.

C. Claims against the Chief Justice, presiding judge, and the Superior Court

As explained below, Macdonald’s claims against the

individual judges must be dismissed because of the judicial

15 immunity and Rooker-Feldman doctrines. Any derivative claims

against the Superior Court are barred for the same reasons.

Further, Macdonald’s contract claim against the Superior Court

fails to state a claim on which relief can be granted. Finally,

any damages claims against the Superior Court are barred by the

Eleventh Amendment.

1. Judicial immunity

Judges have “absolute immunity from civil liability for any

normal and routine judicial act.” Cok v. Cosentino,

(1st Cir. 1989) (citing Stump v. Sparkman,

, 356–

57 (1978)). “This immunity applies even when the judge is

accused of acting maliciously and corruptly,” because the proper

means for correcting errors is appeal. Pierson v. Ray,

(1967). A judge “should not have to fear that

unsatisfied litigants may hound him with litigation charging

malice or corruption. Imposing such a burden on judges would

contribute not to principled and fearless decisionmaking but to

intimidation.”

“This immunity applies no matter how

erroneous the act may have been, how injurious its consequences,

how informal the proceeding, or how malicious the motive. Only

judicial actions taken in the clear absence of all jurisdiction

16 will deprive a judge of absolute immunity.” Cok,

(citations omitted).40

Macdonald has not alleged that the Chief Justice or the

presiding judge acted in the absence of jurisdiction. New

Hampshire law gives the Superior Court jurisdiction over zoning

appeals and the power to issue writs of execution. See RSA

527:2; 677:4. The judges’ decisions could be challenged by

appeals through the New Hampshire courts and to the United

States Supreme Court, but the judges are not subject to

liability in this court for actions within their judicial

jurisdiction. All of Macdonald’s claims against the Chief

Justice and the presiding judge, and those claims against the

Strafford County Superior Court based upon the judges’ actions,

must therefore be dismissed.

2. Rooker-Feldman doctrine

Most, if not all, of Macdonald’s claims against the

judicial defendants also implicate the Rooker-Feldman doctrine.

As the First Circuit Court of Appeals recently explained, “[t]he

Rooker-Feldman doctrine preserves the Supreme Court’s exclusive

jurisdiction over appeals from final state-court judgments, by

40Injunctive relief against judges under Section 1983 is also extremely limited.

(only available if “a declaratory decree was violated or declaratory relief was unavailable”). There is no suggestion that the exceptions apply here.

17 divesting lower federal courts of jurisdiction to hear certain

cases brought by parties who have lost in state court.

Klimowicz v. Deutsche Bank Nat’l Tr. Co.,

(1st

Cir. 2018)(citations omitted). “Specifically, the doctrine

applies to ‘cases brought by state-court losers complaining of

injuries caused by state-court judgments [that were] rendered

before the district court proceedings commenced and invit[e]

district court review and rejection of those judgments.”

at

65 (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

(2005)).

Macdonald asks this court to reconsider various Superior

Court findings and to award VRC damages based upon the Superior

Court proceedings. These are clearly injuries allegedly “caused

by state-court judgments.” Most of the relevant Superior Court

judgments, including those most directly addressed by the

complaint, occurred and became final before proceedings in this

court commenced.

Again, the proper route for Macdonald and VRC to challenge

the decisions of the Superior Court was appeal to the New

Hampshire Supreme Court and, if necessary, to the United States

Supreme Court. This court lacks jurisdiction to consider

alleged injuries caused by completed state court proceedings. 41

41Even apart from judicial immunity, Macdonald’s allegations that the judicial defendants conspired against him are

18 3. Contract claim

Macdonald claims that the Superior Court should be made to

pay $20 million to VRC because it “knew of and violated the

contract presented in this case from the beginning of the

consequences if the [town] took this case to court. The [town]

signed this contract by default and it should be honored.”42

Macdonald has not presented any contract to the court or clearly

described the alleged terms. He appears to be claiming that, at

some stage of this dispute, he told the town that they would owe

him $20 million if they did not acquiesce to his position. The

Superior Court rejected a similar “default contract” argument.43

A mere demand is not a contract, and so Macdonald has failed to

state a claim upon which relief can be granted. Fed. R. Civ. P

12(b)(6). Moreover, any claim for damages against the Superior

Court, whether contractual, under the ADA, or any other theory,

is barred by the Eleventh Amendment. See Stegeman v. Georgia,

(11th Cir. 2008) (“actions against state

courts are barred by the Eleventh Amendment”).

conclusory and speculative, and he thus fails to state claims for relief on those allegations. 42 Compl. (doc. no. 1) at 5. 43Superior Ct. Order on Post-Hearing Briefing and the Town’s Motion to Dismiss Damage Claim of June 8, 2017 (doc. no. 4-7).

19 D. Claims against the Town of Lee, NH

Most of Macdonald’s claims against the town seek to reopen

issues decided by the Superior Court. As explained below, these

claims are barred by the Rooker-Feldman and res judicata

doctrines. In addition, Macdonald fails to state a cognizable

claim under the ADA or a contract claim upon which relief can be

granted.

1. Rooker-Feldman doctrine

The town argues that Macdonald’s claims against it are

barred by the Rooker-Feldman doctrine. This is true only of

those claims where the injury alleged depends on the outcome of

the state court proceedings. The doctrine does not “override or

supplant preclusion doctrine or augment the circumscribed

doctrines that allow federal courts to stay or dismiss

proceedings in deference to state-court actions,” applying only

where the plaintiff is “complaining of an injury caused by the

state-court judgment.” Exxon Mobil,

.

Thus, “[i]f a federal plaintiff presents some independent

claim, albeit one that denies a legal conclusion that a state

court has reached in a case to which he was a party, then there

is jurisdiction and state law determines whether the defendant

prevails under principles of preclusion.”

(quotation

omitted). To the extent that Macdonald premises any of his

claims against the town on an injury caused by a Superior Court

20 ruling, the court dismisses those claims for lack of

jurisdiction. But many of his claims, although “attempts to

litigate in federal court a matter previously litigated in state

court,” see

are within the court’s jurisdiction. As

explained below, however, these remaining claims are subject to

preclusion.

2. Res Judicata

“Under federal law, a state court judgment receives the

same preclusive effect as it would receive under the law of the

state in which it was rendered.” Dillon v. Select Portfolio

Servicing,

(1st Cir. 2011). Under New Hampshire

law, “[r]es judicata precludes the litigation in a later case of

matters actually decided, and matters that could have been

litigated, in an earlier action between the same parties for the

same cause of action.” Brooks v. Trs. of Dartmouth Coll.,

(2011). “For the doctrine to apply, three

elements must be met: (1) the parties must be the same or in

privity with one another; (2) the same cause of action must be

before the court in both instances; and (3) a final judgment on

the merits must have been rendered in the first action.”

The town bears the burden of establishing that res judicata bars

Macdonald’s claims. See Dillon,

.

21 All three factors are met here. The parties are the same,

as the Superior Court proceedings were between Macdonald, VRC,

and the town.44 The Superior Court’s “Final Order” constitutes a

final judgment, and ruled on the merits of several of the causes

of action that Macdonald attempts to revive against the town

here.45 Macdonald’s claims against the town for violation of

RLUIPA, the First Amendment, and the Fourteenth Amendment are

thus barred by res judicata. So are claims alleging that the

town’s Zoning Board misinterpreted the zoning ordinance,

disputing whether Macdonald and VRC violated the conditions of

the settlement agreement, or challenging the validity of the

sheriff’s sale. These issues were litigated to their final

conclusion by the same parties before the Superior Court. The

remedy for any alleged error there is appeal, not a new lawsuit.

3. ADA claim

Macdonald does not specify under which title of the ADA his

claim falls, and the town does not address how the claim should

44Given the confusion of Macdonald and VRC’s interests in the complaint, no distinction between their roles in the state proceedings is relevant to the res judicata analysis. 45Superior Ct. Final Order of Nov. 13, 2017 (doc. no. 4-8). The Superior Court rejected an ADA claim against the town in its March 4, 2016 order, but the present claim is arguably based at least in part on subsequent town conduct, and so not barred by res judicata. See Superior Ct. Order of Mar. 4, 2016 (doc no. 4-3) at 5-6.

22 be classified. But the zoning decisions of a city can be

activities subject to challenge under Title II. Trovato v. City

of Manchester, N.H.,

, 498–99 (D.N.H. 1997)

(McAuliffe, J.).46 The court therefore addresses Macdonald’s

challenge to the town’s zoning decisions under that Title.

To prevail on a claim under Title II, a plaintiff must

prove:

(1) that he is a qualified individual with a disability; (2) that he was either excluded from participation in or denied the benefits of some public entity’s services, programs, or activities or was otherwise discriminated against; and (3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff’s disability.

Buchanan v. Maine,

, 170–71 (1st Cir. 2006). Even

assuming that Macdonald has met the first requirement, he has

not sufficiently alleged the second and third elements. He

alleges that the town sought to exclude homeless veterans

because of misconceptions about veterans and substance abuse.47

But these allegations are conclusory and speculative. Macdonald

has not, for example, alleged that other landowners or churches

have been allowed to build lodging structures absent proper

permitting, or that the town has defined “church” in the zoning

46The Superior Court analyzed Macdonald’s previous ADA claim under Title II. See supra n.42; Superior Ct. Order of Mar. 4, 2016 (doc no. 4-3) at 5. 47 Compl. (doc. no. 1) at 6.

23 ordinance more broadly in other cases. For animus, he makes

only a bare and unsupported allegation that certain selectmen

made derogatory comments about veterans. Macdonald thus fails

to set out factual allegations sufficient to allege

discrimination “by reason of” his disability. Even reading the

complaint generously in light of Macdonald’s pro se status, see

Erickson v. Pardus,

(2007), he has failed to

state a cognizable ADA claim.

4. Contract claim

Macdonald claims that the town owes VRC $20 million. As

discussed supra Part III.D.3, Macdonald does not sufficiently

allege the existence of any contract. Accordingly, Macdonald

has failed to state a claim upon which relief can be granted.

Fed. R. Civ. P. 12(b)(6).

Conclusion

Macdonald seeks to reverse decisions rendered by the

Strafford County Superior Court. For the reasons discussed, the

proper route to challenge those decisions was appeal, and this

court is barred from reopening the issues already decided. The

defendants’ motions to dismiss are GRANTED.48

48 Document nos. 3, 4.

24 SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: March 27, 2019

cc: Peter Macdonald, pro se Nancy J. Smith, Esq. Corey M. Belobrow, Esq.

25