UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael Cohen

v. Civil No. 20-cv-916-JD Opinion No.

Robert L. Quinn, Commissioner, New Hampshire Department of Safety

O R D E R

Michael Cohen brings claims under

against

Robert L. Quinn, Commissioner of the New Hampshire Department of

Safety, that arose from a traffic stop for a suspended license.

Quinn moves to dismiss on the grounds that the claims against

him in his official capacity are barred by the Eleventh

Amendment and that Cohen’s allegations fail to state a claim

against him in his individual capacity. Cohen does not dispute

sovereign immunity under the Eleventh Amendment but otherwise

objects, arguing that he has alleged sufficient claims against

Quinn in his individual capacity and that his claim for

declaratory and injunctive relief is not barred by the Eleventh

Amendment.

Background

The background facts are summarized from Cohen’s first

amended complaint unless another source is stated. On December 15, 2017, Cohen was stopped in Chocorua

Village, New Hampshire, for exceeding the speed limit. He

presented his Massachusetts driver’s license, which listed his

address in Jamaica Plain, Massachusetts. A citation was issued,

showing the Jamaica Plain address, and Cohen was fined $248.

Cohen signed the citation and alleges that he sent it with

payment of the fine on December 20, 2017. His envelope included

the Jamaica Plain return address. The envelope was stamped by

the postal service on February 22, 2018, and was stamped by the

New Hampshire Department of Safety on February 26, 2018.

The Department of Safety issued a Notice of Action to Cohen

on February 14, 2018, but the notice was sent to Cohen at an

address in Somerville, Massachusetts. The Department issued a

second Notice of Action to Cohen on February 26, 2018, which was

again sent to the Somerville address. The notice stated that

Cohen was charged a fifty-dollar administrative fee and said

that to avoid suspension of his operating privileges in New

Hampshire payment of the fee had to be received by March 15,

2018. The notice was returned to the Department of Safety on

March 21 or March 27, 2018, with the notation that Cohen did not

live at the Somerville address. Cohen did not receive the

notice sent to the Somerville address, and no notice was sent to

Cohen at the Jamaica Plain address.

2 On August 3, 2019, just after midnight, Cohen was driving

through Tamworth on his way to Fryeburg, Maine, to join his

family. He was stopped by police because of a non-functioning

tail light. When Cohen presented his license, the officer told

him that his license had been suspended for non-payment of a

traffic citation. The officer also told Cohen that the notice

of suspension was marked as returned by the post office. The

officer did not arrest Cohen but would not allow him to drive

after the stop due to the suspended license.

Because he could not drive, Cohen was forced to stay the

night at a hotel at a cost of $185. He received a citation with

a fine of $310. He also alleges that he experienced emotional

distress because of the stop. Cohen sent e-mails on three

occasions to the Office of the Commissioner at the Department of

Safety in August and September of 2019 to inform the

Commissioner of the circumstances surrounding the suspension of

his license, but he received no response. In July of 2020,

counsel for the Department of Safety notified Cohen’s counsel

that the citation would be nolle prossed.

Cohen brought suit in August of 2020. He alleges a claim

under § 1983, Count I, that the current Commissioner of the

Department of Safety, Robert L. Quinn, in his official and

individual capacities, violated his procedural and substantive

due process rights under the federal and state constitutions by

3 suspending his license without taking reasonable steps to notify

him of the late fee and suspension. In Count II, Cohen seeks

“declaratory and injunctive relief to ensure that the policies

and resources under the control of [Quinn] in his official and

personal capacity [sic] . . . are not used to deny citizens

their federal and state constitutional rights to drive in New

Hampshire without due process.” Doc. no. 8, ¶ 52.

In his reply, Quinn states that he was appointed to the

position of Commissioner of the Department of Safety in April of

2019. Cohen does not dispute the date of Quinn’s appointment.

Discussion

Quinn moves to dismiss Cohen’s claim for damages against

him in his official capacity as barred by the Eleventh

Amendment. He moves to dismiss the claims brought against him

in his individual capacity on the grounds that Cohen has not

alleged facts to show his personal involvement in the events

that led to his arrest for driving with a suspended license and

that Cohen has not alleged facts that show a due process

violation. Further, Quinn contends that in the absence of a due

process violation, Cohen is not entitled to the declaratory and

injunctive relief he seeks.

4 I. Subject Matter Jurisdiction - Eleventh Amendment

Quinn moves to dismiss the official capacity damages claim

for lack of subject matter jurisdiction under Federal Rule of

Civil Procedure 12(b)(1). Under Rule 12(b)(1), the court

construes the allegations in the complaint liberally, treats all

well-pleaded facts as true, and resolves inferences in the

plaintiffs’ favor. Jalbert v. U.S. Securities & Exchange

Comm’n,

, 590-91 (1st Cir. 2019). In addition to

the complaint, the court may consider other evidence submitted

by the parties without objection. Hajdusek v. United States,

(1st Cir. 2018). The plaintiff, as the party

invoking federal jurisdiction, bears the burden of showing that

subject matter jurisdiction exists when challenged by a motion

to dismiss on that ground. Lujan v. Defenders of Wildlife,

(1992).

Cohen appears to concede, as he must, that the Eleventh

Amendment bars his claim for damages against Quinn in his

official capacity because that is a claim against the state.

See Pennhurst St. Sch. & Hosp. v. Halderman,

(1984). On the other hand, however, “a suit challenging the

constitutionality of a state official’s action is not one

against the State.” Pennhurst,

. For that

reason, claims for prospective injunctive relief and declaratory

judgment to stop an ongoing violation of federal law by a state

5 official may be brought against the state official, in his

official capacity. Va. Office for Protection & Advocacy v.

Stewart,

, 255-56 (2011); Ex Parte Young,

(1908).

While federal courts are authorized to require state

officials to conform to federal law, they are not authorized to

require state officials to conform to state law. Pennhurst,

& 121; Duart v. Mici,

, at *2 (D.

Mass. May 18, 2020). In addition, § 1983 does not provide a

cause of action to enforce state law. Martinez v. Colon,

(1st Cir. 1995). Therefore, the court lacks

jurisdiction to consider the claims alleged in Counts I and II

that Quinn violated the New Hampshire Constitution.

Count I is dismissed to the extent it is brought against

Quinn in his official capacity. Counts I and II are dismissed

to the extent they are based on allegations that Quinn violated

the New Hampshire Constitution.

II. Merits of Claims

Quinn moves to dismiss the remaining claims on the ground

that Cohen fails to allege a claim on which relief may be

granted. In considering a motion to dismiss under Federal Rule

of Civil Procedure 12(b)(6), the court asks whether the

complaint contains factual allegations that are sufficient to

6 state a claim to relief that is plausible on its face. Newton

Covenant Church v. Great Am. Ins. Co.,

, 35 (1st Cir.

2020). The court accepts all non-conclusory and non-speculative

facts as true and draws all reasonable inferences in the non-

moving party's favor. Lyman v. Baker,

, 360 (1st

Cir. 2020). The court, however, disregards conclusory

allegations that simply “parrot the relevant legal standard.”

O'Brien v. Deutsche Bank Nat. Tr. Co.,

, 35 (1st Cir.

2020).

Cohen alleges that Quinn violated his federal due process

rights by suspending his driver’s license without notice. He

alleges that because driving is a property right, he was

entitled to be given notice that was reasonably calculated to

apprise him of the late fee and the pending suspension before

his license was suspended. He alleges that Quinn failed to

provide such notice. Further, he alleges that Quinn failed to

provide due process when no subsequent notice was sent to his

Jamaica Plains address after the Department received the

returned notice and, therefore, knew he had not received it.

A. Count I

Quinn contends that Cohen fails to state a due process

claim against him because the claims are brought against the

commissioner, which is a claim against the state, not against

7 him personally. Quinn also contends that Cohen has not alleged

a procedural due process or substantive due process violation

because he received all of the process that he was due. Cohen

disputes those challenges to the complaint, arguing that he

states an individual liability claim for supervisor liability

and sufficiently alleges due process violations.

1. Supervisor Liability

Cohen argues that Quinn is liable under a theory of

supervisor liability based on his statutory duties and his

involvement in creating, applying, or interpreting a policy that

gave rise to unconstitutional conditions. Quinn states that he

was not the commissioner during the time when Cohen was issued a

citation, notice was sent, and his license was suspended. In

his surreply, Cohen focuses on Quinn’s failure to respond to his

e-mails that were sent after he received the citation in August

of 2019.

Officials cannot be held liable under § 1983 for

constitutional violations committed by their subordinates

through a theory of respondeat superior. Ashcroft v. Iqbal,

(2009). Section 1983 claims are only cognizable

against “persons who have actually abused their positions of

authority, and hence only persons who were directly involved in

the wrongdoing may be held liable.” Cordero-Suarez v.

8 Rodriguez,

(1st Cir. 2012). “A supervisory

liability claim under section 1983 has two elements: the

plaintiff must plausibly allege that one of the supervisor’s

subordinates abridged the plaintiff’s constitutional rights and

then forge an affirmative link between the abridgement and some

action or inaction on the supervisor’s part.” Parker v. Landry,

(1st Cir. 2019); Morales v. Chadbourne,

(1st Cir. 2015) (“A supervisor may be held liable for

the constitutional violations committed by his subordinates

where an affirmative link between the behavior of a subordinate

and the action or inaction of his supervisor exists such that

the supervisor’s conduct led inexorably to the constitutional

violation.”). While a supervisor need not personally engage in

the misconduct, “his own acts or omissions must work a

constitutional violation” and his conduct must show deliberate

indifference to the constitutional rights that were violated.

Parker,

.

Quinn was not the commissioner when Cohen received the

initial traffic citation, when the Notices of Action were sent

to the Somerville address and returned, or when Cohen’s license

was suspended. Cohen includes no allegations that Quinn was

involved in sending or even knew about the Notices of Action

sent to the Somerville address or the decision to suspend his

9 license. He alleges no connection of any kind between Quinn’s

actions or omissions and the suspension of his license.

Although Quinn was the commissioner in August of 2019 when

Cohen was stopped and received the citation for driving with a

suspended license, Cohen does not allege that Quinn knew Cohen’s

license was suspended or knew about the stop or the citation.

Cohen alleges no facts to show that any actions or omissions by

Quinn caused a due process violation or show deliberate

indifference to Cohen’s due process rights.

Instead, Cohen relies on Jackson v. Nixon,

(8th Cir. 2014), to oppose the motion to dismiss. In Jackson,

the plaintiff, an inmate and an atheist, challenged the prison’s

requirement that he complete the Offenders Under Treatment

Program. He alleged that the prison required him to complete

the Program to be given credit for an early release date and

that the Program included religious components that violated his

rights as an atheist.

. The Eighth Circuit concluded

that the Director of the Department of Corrections had

sufficient personal involvement in the policy for early release

and the Program to support § 1983 liability. Id. at 544-45. In

contrast, the court concluded that the warden’s general

supervisory authority over the prison was insufficient to

support liability under § 1983. Id. at 545.

10 Cohen argues that Quinn, like the Director in Jackson, was

authorized by New Hampshire law to adopt policies and rules for

suspending driver’s licenses. He states that he was injured by

Quinn’s “broad implementation of a defective practice and policy

of notice for payment of fines, assessment of late fees, and

suspension of licenses.” Doc. no. 13-1, at *4. Cohen does not

point to a particular policy or rule, however, that caused

notice to be sent to him at the wrong address or that caused the

suspension of his license without notice. Further, and more

importantly, Quinn was not the commissioner when the events

leading to suspension of Cohen’s license occurred, and Cohen

alleges nothing to show that Quinn participated in those events.

To avoid that result, Cohen argues in his surreply that

because Quinn was the commissioner in August and September of

2019, when he sent e-mails to the Department, Quinn had “direct

involvement” in his claims. Cohen states that his e-mails to

the Department were sent at the direction “of an agent from the

Department of Safety whose first name is Darlene.” Doc. no. 15,

¶ 2. Cohen also states that he “reached out to David Hilts,

Esq., who is legal counsel for the Office of the Commissioner,

in August and September 2019 with all the details of the

complaint, asked for an explanation and correction of the lack

of proper notice of his administrative fine and suspension and

to work cooperatively with the Office of the Commissioner to

11 address its constitutionally deficient procedures.” Id. Cohen

further states that he was directed by a supervisor in the

Department, on behalf of Hilts, to file a claim with the New

Hampshire Board of Claims. Cohen contends that the suggested

remedy was insufficient to compensate him for “the erroneous

deprivation of his driver’s license.” Id. Cohen contends that

Quinn was obligated to “ameliorate any constitutional violation”

and that his failure to do so causes him to be liable.

As a preliminary issue, these matters are raised in Cohen’s

surreply and are not alleged in the amended complaint. Cohen

has not moved to amend his complaint to add allegations to

support his theory argued in the surreply.

In addition, Cohen’s arguments do not show that Quinn had

any personal involvement in responding or not responding to his

e-mails. He does not allege or argue that Quinn even knew about

the e-mails. Further, he does not allege or argue what

constitutional violation Quinn caused by an insufficient

response to the e-mails or what amelioration of a constitutional

violation should have been provided. As such, Cohen provides no

cohesive or persuasive theory as to what due process violation

occurred as a result of the response he received or did not

receive from the Department and/or Quinn.

12 In the absence of allegations to show that Quinn is liable

for a deprivation of Cohen’s due process rights, Count I is

dismissed.

2. Other Challenges

Because Count I is dismissed due to a lack of allegations

to support the Quinn’s liability, the court need not address the

other grounds raised to dismiss the claim.

B. Count II

In Count II, Cohen seeks declaratory and injunctive relief

“to ensure that the policies and resources under the control of

[Quinn] . . . are not used to deny citizens their federal and

state constitutional rights to drive in New Hampshire without

due process.” Doc. no. 8, ¶ 52. Quinn moves to dismiss Count

II on the ground that Cohen did not allege a viable claim that

his due process rights were violated. In the absence of a

cognizable claim that Quinn violated Cohen’s due process rights,

Cohen’s claims for declaratory and injunctive relief, in Count

II, also fail.

Conclusion

For the foregoing reasons, the defendant’s motion to

dismiss (document no. 11) is granted.

13 All of the plaintiff’s claims are dismissed as provided in

this order.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge March 8, 2021

cc: Counsel of record.

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