UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard Exline

v. Civil No. 19-cv-1107-JD Opinion No.

William Joseph, et al.

O R D E R

After state law charges of identity fraud were dismissed,

Richard Exline sued employees of the New Hampshire Department of

Safety, who, he alleges, were involved in retaliating against

him because of his protected speech. He brings a claim under

, alleging violation of his First Amendment rights,

a similar claim under the New Hampshire Constitution, and a

claim for malicious prosecution. The defendants move to

dismiss. Exline objects.

Standard of Review

In considering a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6), the court accepts the well-pleaded

factual allegations in the complaint as true and construes

reasonable inferences in the plaintiff’s favor. Breiding v.

Eversource Energy,

, 49 (1st Cir. 2019). “To

withstand a Rule 12(b)(6) motion, a complaint must contain

sufficient factual matter to state a claim to relief that is

plausible on its face.” Rios-Campbell v. U.S. Dept. of Commerce,

(1st Cir. 2019) (internal quotation

marks omitted). The purpose of the plausibility standard is to

“weed out cases that do not warrant either discovery or trial.”

(internal quotation marks omitted).

Background

Exline alleges that he has had “a long and sometimes

contentious relationship with the New Hampshire Department of

Safety, Division of Motor Vehicles.” Doc. 1, ¶ 13. He further

alleges that he has had “a long-term relationship with Susanne

Roy, an employee of the New Hampshire Department of Safety,

Division of Motor Vehicles.” Id., ¶ 14. He states that “in

that capacity,” Roy has often clashed with William Joseph,

another employee and a defendant in this case.

On August 3, 2016, Joseph was nominated for another term as

Deputy Director of Motor Vehicles. Two days later, Exline sent

three employees at the New Hampshire Department of Motor

Vehicles (“DMV”) emails with a link to an attachment that read

“Vote No William Joseph reappointment at NH DMV.” Id. ¶ 31. A

notation at the bottom of the bottom of each email stated that

the email had been forwarded by the recipient from Craigslist.

In other words, the email did not identify Exline as the sender

because he wanted to be anonymous and used a Craigslist feature

2 for that purpose. The recipients were Elizabeth Beliecki,

Jeffrey Oberdank, and Maria Buckman.

The New Hampshire State Police opened an investigation,

which was assigned to Detective Sergeant David McCormack. As

part of his investigation, McCormack wrote in a report that

Joseph was upset by the email incident in light of his pending

reappointment. Kelly Brudniak gathered the emails that were

sent to her staff at the DMV and gave them to McCormack. The

recipients of the emails, Bielicki, Oberdank, and Buckman

participated in the investigation and development of the case

against Exline.

By identifying the internet account, the investigation

discovered that Exline sent the emails. McCormack obtained a

search warrant to seize Exline’s and Roy’s computers and cell

phones. The warrant was executed by New Hampshire State

Troopers on March 27, 2017.

In April of 2018, a grand jury returned indictments against

Exline on three counts of identity fraud in violation of RSA

638:26, I(b). The charges were dismissed on October 26, 2018.

In Count I, Exline alleges that all of the defendants

subjected him to arrest and prosecution without probable cause

and subjected him to invasion of privacy and seizure of his

property to retaliate against him for expressing his opinion

about the reappointment of Joseph, in violation of the First

3 Amendment. In Count II, Exline alleges that the same actions

violated Part I, Article 22 of the New Hampshire Constitution.

In Count III, he alleges that all of the defendants acted with

malice in subjecting him to criminal prosecution. He seeks a

million dollars in damages.

Discussion

The defendants move to dismiss all three claims. In

support, they contend that they are entitled to immunity under

the Eleventh Amendment from the claims brought in their official

capacities. They also contend that they are entitled to

immunity from the claim under the New Hampshire Constitution in

Count II. In addition, they challenge the claims on the merits.

Exline objects to parts of the motion.

A. Sovereign Immunity-Count I

The defendants move to dismiss claims against them in their

official capacities. Exline did not respond to that part of the

motion.1 To the extent Exline intended to sue the defendants in

their official capacities, that would constitute a suit against

the State of New Hampshire, and the Eleventh Amendment bars

suits against the state for money damages. Town of Barnstable

1 Exline is represented by counsel, and therefore is not entitled to the leniency that might pertain to a pro se party.

4 v. O’Connor,

(1st Cir. 2015). Therefore, any

claim against the defendants in their official capacities is

dismissed.

B. Immunity under State Law – Count II

The defendants contend that the state constitutional claim

in Count II is barred by sovereign and official immunity under

state law. Exline also did not respond to that part of the

motion.

To the extent Exline intended his state constitutional

claim for damages to be brought against the State of New

Hampshire, the defendants assert that the claims are barred by

sovereign immunity. See Conrad v. N.H. Dept. of Safety,

(2014); Claremont Sch. Dist. v. Governor,

. Exline does not dispute that defense. Therefore,

any claim in Count II against the state is dismissed.2

2 The defendants also argue that Exline cannot bring a claim seeking money damages against the individual defendants because RSA Chapter 541-B only authorizes actions when a plaintiff has suffered either a bodily injury or property damages. The defendants assert that the constitutional violation alleged in this case caused neither bodily injury nor property damage. Although Exline did not respond to that theory for dismissal, the defendants have not shown that RSA Chapter 541-B limits causes of action brought against state employees individually. See Burns v. N.H. Corr. Corporal,

,

, at *3 (D.N.H. July 2, 2019). Nevertheless, Count II is dismissed as explained below.

5 C. Retaliation

In Claim I, Exline alleges that the defendants

“individually and in concert with each other, subjected the

Plaintiff to arrest and prosecution without probable cause, in

retaliation for his First Amendment protected speech.” Doc. 1,

¶ 50. He also alleges that the defendants “subjected the

Plaintiff to invasion of privacy and seizure and retention of

his property, all in retaliation for his First Amendment

protected activity.” Id., ¶ 54. He alleges in Claim II that

the same actions violated Part I, Article 22 of the New

Hampshire Constitution. In Count III, he alleges that he was

subjected to criminal prosecution “instituted by Defendants,”

that “[t]he prosecution was undertaken without probable cause,”

and that “[t]he Defendants acted with malice.” Doc. 1, ¶¶ 62,

63, 64.

Exline, however, does not allege facts to show that any of

the defendants arrested or prosecuted him.3 In the complaint,

the defendants are all identified as employees of the Department

3 Although Exline alleges that Brudniak gathered the emails that Exline sent to Bielecki, Oberdank, and Buckman and gave them to McCormack and alleges that they participated in the prosecution voluntarily, he provides no allegations that they prosecuted him. Gathering information or evidence is not prosecution of a crime.

6 of Safety.4 William Joseph, Elizabeth Bielecki, Jeffrey

Oberdank, Maria Buckman, and Kelly Brudniak are employees of the

Division of Motor Vehicles (“DMV”) in the Department of Safety.

As the DMV defendants point out, without objection from Exline,

they lack any authority to arrest or prosecute in these

circumstances. For that reason, Exline does not and could not

allege that the DMV defendants arrested or prosecuted him.

While Exline criticizes McCormack’s investigation of the

emails, he does not allege that McCormack obtained the grand

jury indictment, arrested him, or prosecuted the charges against

him. In fact, Exline does not allege who arrested and

prosecuted him, and instead, refers generally to “the

government.”5 Doc. 1, ¶¶ 38, 39. In the absence of allegations

that any of the defendants violated his right to free speech by

retaliatory arrest or prosecution, he fails to state a claim for

violation of his constitutional rights in Claim I and Claim II

on those grounds. Similarly, he does not allege that any of the

Exline makes no allegations against Barthelmes, 4

identifying him only as an employee of the New Hampshire Department of Safety. To the extent Exline’s allegations of actions taken by “the government” were intended to allege claims for damages against the state, those claims are barred by sovereign immunity.

In their reply, the defendants point out that Exline was 5

prosecuted by the Merrimack County Attorney’s Office.

7 defendants prosecuted him, which is fatal to his malicious

prosecution claim.

Exline also alleges in Claim I that the “defendants”

retaliated against him by invading his privacy and seizing and

retaining his property, but he provides no facts to support that

theory. He alleges that McCormack obtained a search warrant to

seize his computers and cell phones and that the search warrant

was executed by state troopers who are not defendants in this

case. Therefore, any claim of retaliation based on the search

and seizure of his electronics is not supported by factual

allegations that state a cognizable claim.

To the extent Exline intended to allege a conspiracy to

retaliate against him in Claim I, his claim fails. A civil

conspiracy to violate a constitutional right requires

allegations that the defendants were involved in a common design

or agreement to violate the plaintiff’s right, that at least one

of them took a wrongful act in furtherance of the agreement, and

that the plaintiff’s asserted right was violated. Tibbs v.

Samuels,

, at *6 (D. Mass. Mar. 28, 2017).

Exline has not alleged facts that show an agreement, that any

defendant arrested or prosecuted him or searched or seized his

property, or that the defendants’ actions caused a deprivation

of his First Amendment rights.

8 D. Probable Cause

Even if Exline had provided allegations that the defendants

were causally involved in his arrest and prosecution and the

seizure of his electronics, he does not state a claim that his

constitutional rights to free speech were violated. He also

does not state a claim for malicious prosecution.

To show that the defendants retaliated against him in

violation of the First Amendment by arresting and prosecuting

him, Exline must allege facts to show that the defendants lacked

probable cause to arrest and prosecute him. Nieves v. Bartlett,

(2019). A narrow exception exists when

officers have probable cause to arrest but ordinarily exercise

their discretion not to do so, such as when persons are seen

jaywalking.

. The defendants have asserted, and

Exline does not dispute, that the same standard applies to a

claim of retaliation in violation of Part I, Article 22 of the

state constitution.6 To state a claim for malicious prosecution

under New Hampshire law, Exline must allege facts to show that

the defendants lacked probable cause to prosecute him. Farrelly

v. City of Concord,

(2015).

6 In opposing the defendants’ motion on the issue of probable cause, Exline addresses only Count I, alleging a violation of the First Amendment, and Count III, alleging a state law claim for malicious prosecution. He does not oppose the motion to dismiss Count II on any ground.

9 Probable cause exists to arrest or to prosecute when the

facts and circumstances known by the actor, based on reasonably

reliable information, would warrant a prudent person to believe

that the suspect has committed or is about to commit a crime.

United States v. Merritt,

, 583 (2019); Burke v.

Town of Walpole,

(1st Cir. 2005). When a grand

jury returns an indictment that is valid on its face, probable

cause is conclusively determined and cannot be challenged absent

a showing that there were improprieties in obtaining the

indictment. Kaley v. United States,

(2014);

Ojo v. Lorenzo,

(2013).

The grand jury’s indictment establishes that probable cause

existed to arrest and prosecute Exline for identity fraud in

violation of RSA 638:26, I(b).7 Exline alleges no facts to show

that any improprieties occurred in obtaining the grand jury’s

indictments.8 Although Exline argues that the exception

7 Similarly, Exline’s computers and cellphone were taken under the authority of a search warrant. A search warrant must be supported by probable cause, and a search and seizure pursuant to a valid warrant is reasonable. U.S. Const. Amend. 4; United States v. Mendoza-Maisonet, --- F.3d ---,

, at *9 (1st Cir. June 9, 2020). He does not allege that the search warrant was improperly obtained or otherwise invalid. Therefore, he does not allege facts to show that the search and seizure of his property was improper.

8 In his surreply, Exline argues that because New Hampshire grand jury proceedings are not recorded unless the government decides to do so, there is no record to show that the government misinformed the grand jury about the charged crime. He further

10 identified in Nieves should be applied here, he provides no

allegations to show that the discretion that is the basis for

the exception existed in the circumstances of this case where a

grand jury found probable cause to indict.

Therefore, because Exline does not allege that any of the

defendants arrested or prosecuted him or searched or seized his

property and does not allege facts to show that those actions

were taken without probable cause, his claims fail.

Conclusion

For the foregoing reasons, the defendants’ motion to

dismiss (document no. 40) is granted. All of the plaintiff’s

claims are dismissed.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge

July 6, 2020 cc: Counsel of Record.

states that “at this stage in the proceedings, it is entirely plausible, and indeed almost unavoidable, that the government mis-informed the grand jury on the applicability to RSA 638:20 [sic] to the facts of the case.” Doc. 46, at *2. Although Exline urges the court to assume that improprieties occurred, he provides no allegations that would support such an assumption, and the court will not proceed on a baseless assumption.

11