UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Robert Every, Plaintiff

v. Case No. 18-cv-43-SM Opinion No.

Town of Littleton, New Hampshire; Andrew Dorsett, Town Manager; Milton Bratz, Selectman; Schuyler Sweet, Selectman; Edward Hennessey, Former Selectman; Paul Smith, Chief of Police; Stephen Cox, Former Detective Sergeant; and George McNamara, Former Public Works Director, Defendants

O R D E R

On January 16, 2018, pro se plaintiff, Robert Every, filed

suit against the Town of Littleton, New Hampshire, as well as

several town officials, advancing various state and federal

claims generally relating to criminal charges filed by the Town

of Littleton against Every on July 6, 2016. Defendants moved to

dismiss Every’s claims, and, on September 11, 2018, the court

granted defendants’ motion, but allowed Every the opportunity to

file an amended complaint with respect to his claims under the

Fourteenth Amendment, based on defendants’ having allegedly

singled out Every for enforcement, as well as claims brought

under the Fourth Amendment. On November 2, 2018, Every filed an amended complaint.

Defendants again move to dismiss plaintiff’s claims. Every

objects.

Standard of Review

When ruling on a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the court must “accept as true all well-pleaded facts

set out in the complaint and indulge all reasonable inferences

in favor of the pleader.” SEC v. Tambone,

(1st Cir. 2010). Although the complaint need only contain “a

short and plain statement of the claim showing that the pleader

is entitled to relief,” Fed. R. Civ. P. 8(a)(2), it must allege

each of the essential elements of a viable cause of action and

“contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v.

Iqbal,

(2009) (citation and internal

punctuation omitted). The “plausibility” standard is satisfied

if the factual allegations in the complaint, along with

reasonable inferences, show more than a mere possibility of

liability. Walbridge v. Northeast Credit Union,

(D.N.H. 2018) (citing Germanowski v. Harris,

(1st Cir. 2017)).

2 Generally, a court must decide a motion to dismiss

exclusively upon the allegations set forth in the complaint and

the documents specifically attached, or convert the motion into

one for summary judgment. See Fed. R. Civ. P. 12(2). There is,

however, an exception to that general rule, as “[a] district

court may also consider ‘documents incorporated by reference in

[the complaint], matters of public record, and other matters

susceptible to judicial notice.’” Giragosian v. Ryan,

(1st Cir. 2008) (quoting In re Colonial Mortgage Bankers

Corp.,

(1st Cir. 2003)) (alterations in

original).

Background

For purposes of resolving the motion to dismiss, the

factual allegations set forth in Every’s amended complaint and

the attached exhibits must be taken as true. The facts asserted

by Every in his amended complaint are substantially similar to

those alleged in his original complaint 1 and are fully described

in the September, 2018, order.

Every is the sole director and officer of the Esterhill

Boat Service Corporation. He holds a controlling interest in

1 Indeed, Every states, “This background is to briefly clarify and address deficiencies in the original filing.” Am. Compl., p. 4.

3 the stock. He makes all policy and operational decisions for

the corporation. The Esterhill Boat Service Corporation owns a

building located at 551 Meadow Street in Littleton, New

Hampshire, in which two restaurants, Asian Garden and Bagel

Depot, operate. Every has no ownership interest in either

restaurant.

The Meadow Street building is “below the level of sewer,”

so it cannot employ “gravity flow to the sewer line,” like most

other buildings. Am. Compl., p. 5. Instead, the building uses

a pump station to pump sewage from the building into the town’s

sewer line on Meadow Street. The building’s pump/utility room

includes a pump chamber, lift stations, and other systems that

facilitate the disposal process. Every designed and rebuilt the

pump system, and he oversees and maintains the pump/utility

room. According to Every, he “has overseen the installation,

maintained and worked on all the alarm systems, safety systems,

primary and back-up systems in the pump/utility room and

considers them his intellectual property.” Am. Compl. ¶ 50.

Every keeps in the pump room “information and manuals on the

[pump] system,” as well as his notes on the system. Id. at ¶

51. He also “leaves his tools in the pump/utility room with the

expectation they will not be disturbed, . . . because he

restricts access to the room based solely on his own

4 discretion.” Id. at 51. According to Every, “[n]o one enters

the pump/utility room without the plaintiff being there or his

express permission.” Id. at 51. The only way to access the

pump room is through the offices of AllStaff Services (another

business located in the 551 Meadow Street Building). Every says

that the AllStaff Services staff contacts him for permission

before allowing anyone access.

During much of the time relevant to this proceeding, the

Asian Garden held a wastewater permit. The other business -

Bagel Depot - did not have a wastewater permit (something Every

says he repeatedly told town officials). Every has never

personally had (or been required to have) a wastewater permit,

since he does not (personally) own the building, nor does he

occupy it, nor does he personally make any discharges into the

town sewer system. As he puts it, “[t]he plaintiff maintains no

presence in the building insofar as discharging [sewage] into

the sewer system. The plaintiff neither runs a business out of

the building nor introduces sewage into the Littleton sewer

system beyond occasionally getting a cup of coffee and a bagel

in Bagel Depot – something Littleton Police officers also do.”

Am. Compl. ¶ 48.

At some point, the town began having problems with its

sewer system, problems that Every alleges were “out of control

5 and . . . widespread.” Am. Compl. ¶ 10. In his amended

complaint, Every describes a December, 2016, incident in which

“gallons of sewage” erupted onto Meadow Street, and he cites a

July, 2017, news article that discusses Littleton’s sewage

problems and the town’s remediation efforts. Am. Compl. ¶ 21,

and Exh. E. Every attributes the town’s sewage problems to

several other town businesses, including McDonald’s, Shaw’s, and

the 99 Restaurant.

Despite these much larger businesses that discharged

wastewater into the public sewer system, Every says the town

targeted the building owned by Esterhill Boat Service

Corporation as a potential source of its sewer problems, and

initiated an enforcement action. Every asserts that the

property was targeted, at least in part, because Chief of Police

Paul Smith held a personal grudge against him, one arising from

an incident that occurred many years ago.

When Every learned of the enforcement action, he says he

wrote a letter to the town selectmen and a number of town

officials, dated July 29, 2016, requesting a meeting, so he

might explain the situation and address the town’s concerns.

That letter was ignored, as were Every’s follow-up efforts to

meet with town officials. About this same time, a local

newspaper printed a front-page article that incorrectly

6 identified Every as the owner of the Meadow Street building, and

stated that he was responsible for the town’s sewer problems.

Additional articles portraying Every in a negative light soon

followed in other newspapers. Every complains that the tone of

those articles (which, he says, imply that Every is “pretty much

responsible for Littleton’s sewer issues”) differed from the

media’s coverage of other town sewer-related issues. 2 Am. Compl.

¶ 28-29.

Every claims that the town knew that the Meadow Street

building was owned by the Esterhill Boat Service Corporation,

rather than Every personally. See Am. Compl., ¶ 35 and Exh. C,

Letter from Town of Littleton (document no. 8-1) at 3.

Nevertheless, Every was criminally charged with violating

Chapter 13, Article V, Section 3(II)(D) of the Littleton sewer

ordinance, which prohibits persons from discharging (or causing

to be discharged) “[s]olid or viscous substances in quantities

or of such size capable of causing obstruction to the flow in

sewers, or other interference with the proper operation of the

wastewater facilities.”

2 In his initial complaint, Every contended that he suspected that one or more town officials provided the newspaper with the false information upon which the original article, as well as those that followed, were based.

7 After Every was charged, the Littleton Police Department

sought and obtained a warrant to inspect the grease traps at the

Asian Garden and Bagel Depot restaurants. While the amended

complaint is not entirely clear, Every seems to allege that the

search warrant was deficient for two reasons. First, he seems

to say that Littleton police officers falsely swore to material

facts in the affidavit supporting the application for the

warrant. Every’s amended complaint does not provide additional

details in that regard, but in his original complaint, Every

alleged that the warrant application falsely represented that

(a) Every personally owned the building, and (b) Every held an

“Industrial Discharge Class III Permit.” Neither statement is

literally true. And, says Every, the officers who applied for

the warrant knew or should have known that those statements were

false. Second, Every says Detective Cox (and a uniformed

Littleton police officer whose name Every does not know)

exceeded the scope of the warrant when they searched an area not

covered by the warrant: the pump room.

Every’s criminal case proceeded to trial. Every asserts

that various forms of alleged prosecutorial misconduct occurred

during his trial, including the prosecutor’s rehearsal of

witnesses, witness collusion, and the prosecutor’s ignoring

witness’s concerns regarding the charge against Every. After

8 the prosecution rested, the presiding judge entered judgment of

acquittal as a matter of law.

Based on the foregoing, Every asserts Section 1983 claims

for violations of his Fourth and Fourteenth Amendment rights.

Discussion

1. Fourth Amendment Claim

As the court noted in its September, 2018, order, “[t]he

Fourth Amendment protects ‘[t]he right of the people to be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.’” Carpenter v. United

States,

(2018) (quoting Camara v.

Municipal Court of San Francisco,

(1967)).

The ”Fourth Amendment protects people, not places,” Katz v.

United States,

(1967), and “Fourth Amendment

rights are personal rights, which . . . may not be vicariously

asserted.” Rakas v. Illinois,

(1978)

(quoting Alderman v. United States,

(1969))

(citations omitted).

“The Fourth Amendment's protection against unreasonable

searches and seizures extends only to those places and interests

in which the [individual] has a reasonable expectation of

privacy.” United States v. Lewis,

(1st Cir.

9 1994) (citing United States v. Cruz Jiménez,

(1st

Cir. 1990)) (further citations omitted). “Such an expectation

of privacy is a threshold standing requirement that a [party]

must establish before a court can proceed with any Fourth

Amendment analysis.” 3

(citations omitted). “The Fourth

Amendment’s standing principle is embodied in the requirement

that a party claiming a Fourth Amendment violation must

demonstrate that he, and not someone else, had a legitimate

expectation of privacy in the area or thing searched.” Berry v.

FBI, et al., No. 17-CV-143-LM,

, at *5 (D.N.H.

July 17, 2018) (citing Byrd v. United States,

(2018)).

The defendants argue that Every lacks a reasonable

expectation of privacy in the pump room sufficient to assert a

Fourth Amendment claim. Defendants also note that Every,

individually, had no expectation of privacy in the item seized

in this case, that is, samples of wastewater or waste product

flowing irretrievably into the Littleton sewer system.

3 As our court of appeals has explained, the term “standing” is used “somewhat imprecisely” in this context to refer to a “threshold substantive determination” of a defendant’s “legitimate expectation of privacy as a prerequisite to challenging assertedly unlawful police conduct.” United States v. Sanchez,

, 113 n.1 (1st Cir. 1991).

10 So, at issue once again is whether Every – in his personal

capacity – has sufficiently established a legitimate expectation

of privacy for Fourth Amendment purposes. The Supreme Court

established a “two-part test for analyzing the expectation

question: first, whether the movant has exhibited an actual,

subjective expectation of privacy; and second, whether such

subjective expectation is one that society is prepared to

recognize as objectively reasonable.” United States v. Rheault,

(1st Cir. 2009) (citing Smith v. Maryland,

(1979)).

Relying on Riverdale Mills Corp. v. Pimpare,

(1st Cir. 2004), defendants make a compelling argument that

Every did not have an objectively reasonable expectation of

privacy in the wastewater samples seized in this case. See

Riverdale,

(“Riverdale has abandoned any

reasonable expectation of privacy in the wastewater by allowing

it to flow irretrievably into a place where it will be ‘exposed

... to the public.’”) (quoting California v. Greenwood,

(1988)). Every emphatically disavows any personal

interest in the building’s wastewater in his Amended Complaint,

pleading that he “maintains no presence in the building insofar

as discharging sewerage into the sewer system. The plaintiff

neither runs a business out of the building nor introduces

11 sewage into the Littleton sewer system beyond occasionally

getting a cup of coffee and a bagel in Bagel Depot.” Am. Compl.

¶ 48. At no point, then, did Every have or claim a possessory

interest in the item seized – wastewater discharge samples.

Every’s claim of privacy expectations in the area searched,

the utility pump room of the commercial property owned by the

Esterhill Boat Services Corporation, is also doubtful.

Certainly, the Esterhill Boat Corporation, “as [a] corporate

entit[y], could challenge the search” of the utility room. U.S.

v. Nagle,

(3d Cir. 2015). But, that is not

the question. The question here is whether Every, the owner of

the corporation’s stock and its president, has standing in his

individual capacity to challenge the search.

The Supreme Court has held that an “owner or operator of a

business has an expectation of privacy in commercial property,”

but that expectation “is different from, and indeed less than, a

similar expectation in an individual’s home.” New York v.

Burger,

(1987). See also Vega-Rodriguez

v. Puerto Rico Tel. Co.,

(1st Cir. 1997)

(“Generally speaking, business premises invite lesser privacy

expectations than do residences.”). The “great variety of work

environments” requires analysis of reasonable expectations “on a

case-by-case basis.” O'Connor v. Ortega,

, 718

12 (1987). And, as the Court of Appeals for the Third Circuit

observed in U.S v. Nagle,

-177:

[a]lthough the Supreme Court has not clarified precisely how much “less” of an expectation of privacy a business owner has in commercial premises, we see a consensus among the Courts of Appeals that a corporate shareholder has a legitimate expectation of privacy in corporate property only if the shareholder demonstrates a personal expectation of privacy in the areas searched independent of his status as a shareholder.

(emphases added). Cf., United States v. Mancini,

(1st Cir. 1993) (considering the following

factors as relevant to the Fourth Amendment standing

determination: “ownership, possession and/or control; historical

use of the property searched or the thing seized; ability to

regulate access; the totality of the surrounding circumstances;

the existence or nonexistence of a subjective anticipation of

privacy; and the objective reasonableness of such an expectancy

under the facts of a given case.”) (quoting Sanchez,

) (further quotations omitted).

So, did Every, by his conduct, exhibit “an actual

expectation of privacy; that is,” has he shown that he sought to

preserve the pump room area as a private space for himself,

personally? Bond v. United States,

(2000).

Every asserts that the pump room is his “domain and has been for

the entire time of building ownership,” and that access to the

13 room is gained only with his permission. Am. Compl. ¶ 51; see

also Am. Compl. ¶ 62. He further states:

[a]ll corporation presidents do not wear a suit and operate from behind a desk. Some, such as the plaintiff, are more hands on, and exercise their control while operating outside the typical office environment. Nevertheless, whether a president exercises his control in an office or in the utility room, both have an equal expectation of privacy in the area where they “routinely work” and have a “personal connection.”

Pl.’s Obj. to Mot. to Dismiss at 10 (quoting U.S. v. Novak, No.

13-CR-312,

, at *5-7 (N.D. Ill. Feb. 18, 2015)).

Every does not allege that the pump room door was locked. 4 The

room, presumably, could be accessed by any AllStaff employee, or

by anyone else visiting the AllStaff office who opened the door.

But, even assuming that Every had a demonstrable, personal,

and subjective expectation of privacy in the pump room, he does

not allege facts sufficient to establish that that subjective

expectation was “objectively reasonable.” That is because Every

has not sufficiently alleged a personal connection to the pump

room independent of his status as an agent of the Esterhill Boat

Services Corporation.

4 In his objection to defendant’s motion to dismiss, Every does contend that the pump chamber itself, from which defendants obtained the wastewater samples, was kept locked. It is not entirely clear how the government obtained the wastewater samples, but presumably a key was available.

14 Every is the sole director and officer of the Esterhill

Boat Services Corporation, and he owns a controlling interest in

the stock. However, a corporation and the individual who

created or owns that corporation are separate entities. See

Cedric Kushner Promotions, Ltd. v. King,

(2001), (“linguistically speaking, the employee and the

corporation are different ‘persons,’ even where the employee is

the corporation's sole owner. After all, incorporation's basic

purpose is to create a distinct legal entity, with legal rights,

obligations, powers, and privileges different from those of the

natural individuals who created it, who own it, or whom it

employs.”). While some alleged facts do favor personal

standing, Every must allege a personal relationship to the area

searched. See Williams v. Kunze,

(5th Cir.

1986) (“An individual's status as the sole shareholder of a

corporation is not always sufficient to confer upon him standing

to assert the corporation's fourth amendment rights. Unless the

shareholder, officer or employee can demonstrate a legitimate

and reasonable expectation of privacy in the records seized, he

lacks standing to challenge the search and seizure.”) (citing

United States v. Britt,

(5th Cir. 1975)).

While not frivolous, Every’s standing claims fall well

short of establishing that he had a protected personal privacy

15 interest in the pump room. While he maintained control over the

room, and controlled access, and designed and built the pump

station, and considers the systems in the pump room his

intellectual property, and keeps relevant information, manuals,

and his notes on the pump station system in the pump room, as

well as, occasionally, his tools, see generally Am. Compl. at ¶

50-52, those allegations all involve Every’s duties and

responsibilities as an agent of the Esterhill Boat Services

Corporation. They do not involve his personal privacy

interests. The pump systems, and information and manuals are

the property of the Esterhill Boat Services Corporation, not

Every. Every does not claim that he uses the pump room to store

personal records or personal items of any kind, as one might in

an office desk or closet, other than “his” tools, which he says

he occasionally stored in the pump room. But, Every obviously

kept the tools for purposes of performing building maintenance

work, a task presumably performed on behalf of the company.

Accordingly, as with his original complaint, Every is

attempting to vicariously assert the Fourth Amendment rights of

the Esterhill Boat Services Corporation. Therefore, his Fourth

Amendment claim arising out of the search of the utility room

and seizure of wastewater samples from the Meadow Street

building is dismissed for lack of standing.

16 2. Federal Equal Protection Claim

Every’s equal protection claim is premised on a selective

prosecution theory, that is, that the town violated his rights

by bringing a sewer ordinance enforcement action against him,

but failed to bring similar charges against others who were

similarly situated. Defendants counter that Every’s claim must

be dismissed because Every fails to allege facts sufficient to

demonstrate that he was treated differently from others who were

similarly situated. Relying on the news articles attached to

Every’s Amended Complaint, defendants point out that the Meadow

Street building had a lengthy history of sewage issues. 5 And,

say defendants, Every fails to identify any comparator with a

similar history.

As the court noted previously, to bring a “class of one”

equal protection claim, a plaintiff must allege that he was

“intentionally treated . . . differently from others similarly

situated and there was no rational basis for this disparate

treatment.” Najas Realty, LLC v. Seekonk Water Dist.,

(1st Cir. 2016) (citations omitted).

Although “the formula for determining whether individuals or entities are ‘similarly situated’ for

5 The court “may properly consider the relevant entirety of a document integral to or explicitly relied upon in the complaint.” Clorox Co. P.R. v. Proctor & Gamble Commercial Co.,

(1st Cir. 2000).

17 equal protection purposes is not always susceptible to precise demarcation,” Barrington Cove Ltd. v. R.I. Hous. & Mortg. Fin. Corp.,

(1st Cir. 2001), the case law makes clear that the burdens of production and persuasion must be shouldered by the party asserting the equal protection violation. Thus, “[p]laintiffs claiming an equal protection violation must first identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently”. Buchanan v. Maine,

, 178 (1st Cir. 2006)).

Cordi-Allen v. Conlon,

(1st Cir. 2007)

(emphasis in original).

Specific comparators and their similarities must be alleged

with “reasonable particularity” at the Rule 12(b)(6) stage, as

“[a]n equal protection claimant ‘may not prevail [against a Rule

12(b)(6) motion] simply by asserting an inequity and tacking on

the self-serving conclusion that the defendant was motivated by

a discriminatory animus.’” Barrington Cove, LP,

,

10 (quoting Coyne v. Somerville

(1st Cir.

1992)). “To carry the burden of proving substantial similarity,

plaintiffs must show an extremely high degree of similarity

between themselves and the persons to whom they compare

themselves.” Cordi-Allen,

(internal quotations

omitted). “They must show that they ‘engaged in the same

activity . . . without such distinguishing or mitigating

circumstances as would render the comparison inutile.’” Snyder

v. Gaudet,

(1st Cir. 2014) (quoting Cordi-Allen,

18

). Moreover, in claims such as Every’s, the

plaintiff must ordinarily plead facts that show that the

defendants’ “differential treatment of the plaintiff was

motivated by ‘bad faith or malicious intent to injure.’”

Snyder,

(quoting Rubinovitz v. Rogato,

(1st Cir. 1995)).

Every contends that questionable charges were filed against

him for sewer violations, while no charges were filed against

other violators. 6 He points to McDonalds, which, he alleges, has

an extremely dirty grease trap that the town failed to monitor;

Shaws, which the Littleton Town Manager publicly criticized for

“inconsistent and inadequate maintenance of its grease

management system,” Am. Compl. ¶ 23; and the 99 Restaurant,

where a sewage overflow occurred. More generally, says Every,

sewage issues were a “town-wide problem,” “not just a problem in

the sewer line shared by 551 Meadow Street and McDonalds.” Am.

Compl. ¶ 11. He points to media coverage of other sewage-

related incidents that occurred in the town that did not result

in charges against any alleged perpetrators. And, according to

Every, the defendants were acting in bad faith, seeking a

6 Every takes umbrage at the media coverage surrounding the charges against him. To the extent he is alleging that the town is directly responsible for the manner in which the media covered the town’s charges against him, that allegation lacks factual support.

19 scapegoat for the town’s sewer issues, and he was singled out

because the police chief harbored a long-standing personal

grudge against him. Am. Compl., p. 4.

In his Amended Complaint, Every does identify businesses in

the town that also experienced wastewater discharge issues.

But, even assuming that those businesses unlawfully discharged

sewage in quantities capable of causing obstruction to the flow

of the sewers, the circumstances surrounding those purported

violations, as alleged by Every, are not sufficiently well pled

to determine whether those comparators were, in fact, similarly

situated in all relevant aspects. There are, of course, a

panoply of factors that might have led the town to rationally

distinguish between purported violators in making decisions

about whether and whom to charge with sewage ordinance

violations. For example, there may be material differences or

mitigating factors in the comparators’ responses to the

discharge issues and steps they took to address those issues;

there may be relevant differences in the comparators’ history of

discharge issues; or in the types of septic systems those

comparators have installed. As multiple news articles upon

which plaintiff relies in his Amended Complaint note, the 551

Meadow Street property had a lengthy history of unresolved

septic issues. All of those factors might well contribute to

20 different treatment by the town with respect to enforcement

actions. 7 “[A] class-of-one plaintiff bears the burden of

showing that his comparators are similarly situated in all

respects relevant to the challenged government action.”

Gianfrancesco v. Town of Wrentham,

(1st Cir.

2013) (emphasis added). See also Rectrix Aerodrome Centers,

Inc. v. Barnstable Mun. Airport Comm'n,

(1st Cir.

2010) (requiring a “strict showing of comparability,” and

stating: “[d]rawing distinctions is what legislators and

regulators do every day: without this comparability sieve, every

routine governmental decision at the state and local level — of

which there are millions every year — could become a class-of-

one case in federal court.”) (citations omitted).

Because Every fails to allege the requisite degree of

similarly between the 551 Meadow Street building and the

Littleton McDonalds, Shaws, and 99 Restaurant, he has not

asserted a plausible class-of-one claim. His equal protection

claim must, therefore, be dismissed.

7 Along those lines, as the Court of Appeals for the Seventh Circuit has noted, the “Constitution does not require states to enforce their laws (or cities their ordinances) with Prussian thoroughness as the price of being allowed to enforce them at all. Otherwise few speeders would have to pay traffic tickets. Selective, incomplete enforcement of the law is the norm in this country.” Hameetman v. City of Chicago,

(7th Cir. 1985) (internal citations omitted).

21 3. State Law Claims

Plaintiff’s complaint fails to set forth the essential

elements of any viable federal cause of action. Because all

federal claims in Every’s complaint are resolved, and taking

into account the factors identified in Camelio v. American

Federation,

(1st Cir. 1998), the court

declines to exercise supplemental jurisdiction over Every’s

state law claims.

Conclusion

For the reasons discussed, and for those given in

defendant’s memorandum in support of its motion, the Town of

Littleton’s motion to dismiss (document no. 13) is GRANTED,

albeit the state law claims are dismissed without prejudice.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge May 7, 2019

cc: Robert Every, pro se Corey M. Belobrow, Esq.

22