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Case 1:10-cv-00449-PB Document 14 Filed 01/07/11 Page 1 of 13
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW HAMPSHIRE
`
`
`
`Michael G. Cheney
`
`v.
`
`
`
`
`
`
`
`
`
`Civil No. 10-cv-449-PB
`
`
`
`
`Concord Police Department et al.1
`
`
`
`REPORT AND RECOMMENDATION
`
`
`
`
`
`Before the Court is Michael Cheney‟s complaint (doc. no.
`
`1). Because Cheney is a prisoner proceeding pro se and in forma
`
`pauperis, the matter is before me for preliminary review to
`
`determine, among other things, whether or not the complaint
`
`states any claim upon which relief might be granted. See 28
`
`U.S.C. § 1915A(a); United States District Court District of New
`
`Hampshire Local Rule (“LR”) 4.3(d)(2) (authorizing magistrate
`
`judge to conduct an initial review of pro se prisoner
`
`complaints). For the reasons discussed herein, I recommend the
`
`complaint be dismissed in its entirety.
`
`Standard of Review
`
`
`
`Under this Court‟s local rules, when an incarcerated person
`
`commences an action pro se and in forma pauperis, the Magistrate
`
`Judge conducts a preliminary review. LR 4.3(d)(2). In
`
`conducting the preliminary review, the Court construes all of
`
`
`1In addition to the Concord Police Department (“CPD”), Cheney
`names the following defendants to this action: CPD Chief Robert
`C. Barry, Charles Anzaldi, Susan Murphy, and Timothy Smith.
`
`

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`Case 1:10-cv-00449-PB Document 14 Filed 01/07/11 Page 2 of 13
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`the factual assertions in the pro se pleadings liberally,
`
`however inartfully pleaded. See Erickson v. Pardus, 551 U.S.
`
`89, 94 (2007) (per curiam) (following Estelle v. Gamble, 429
`
`U.S. 97, 106 (1976), to construe pro se pleadings liberally in
`
`favor of the pro se party). “The policy behind affording pro se
`
`plaintiffs liberal interpretation is that if they present
`
`sufficient facts, the court may intuit the correct cause of
`
`action, even if it was imperfectly pled.” Ahmed v. Rosenblatt,
`
`118 F.3d 886, 890 (1st Cir. 1997); see also Castro v. United
`
`States, 540 U.S. 375, 381 (2003) (courts may construe pro se
`
`pleadings to avoid inappropriately stringent rules and
`
`unnecessary dismissals). This review ensures that pro se
`
`pleadings are given fair and meaningful consideration.
`
`
`
`To determine if a pro se complaint states any claim upon
`
`which relief could be granted, the Court must consider whether
`
`the complaint, construed liberally, Erickson, 551 U.S. at 94,
`
`“contain[s] sufficient factual matter, accepted as true, to
`
`„state a claim to relief that is plausible on its face.‟”
`
`Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949
`
`(2009) (citation omitted). “A claim has facial plausibility
`
`when the plaintiff pleads factual content that allows the court
`
`to draw the reasonable inference that the defendant is liable
`
`for the misconduct alleged.” Id. Inferences reasonably drawn
`
`from the plaintiff‟s factual allegations must be accepted as
`
`
`
`2
`
`

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`Case 1:10-cv-00449-PB Document 14 Filed 01/07/11 Page 3 of 13
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`true, but the Court is not bound to credit legal conclusions,
`
`labels, or naked assertions, “devoid of „further factual
`
`enhancement.‟” Id. (citation omitted). Determining if a
`
`complaint sufficiently states such a claim for relief is a
`
`“context-specific task that requires the reviewing court to draw
`
`on its judicial experience and common sense.” Id. at 1950
`
`(citation omitted).
`
`Background
`
`On December 6, 2008, Michael Cheney went to Susan Murphy‟s
`
`Concord, New Hampshire, apartment. There, he was grabbed around
`
`the throat by Charles Anzaldi, who was visiting Murphy. Also
`
`during that visit, Timothy Smith, a relative of Anzaldi‟s, asked
`
`Cheney for $400 to bail Smith‟s uncle out of jail. Cheney
`
`states that he gave Smith the money, but later came to believe
`
`that Smith did not need the money for his uncle‟s bail, and had
`
`conned Cheney out of the money so that Smith could buy drugs.
`
`Cheney reported to the Concord Police Department (“CPD”) that he
`
`had been assaulted and robbed. Cheney claims he made both oral
`
`and written statements to the police. CPD Officer Eric Crane
`
`investigated Cheney‟s accusations and determined that there was
`
`insufficient evidence to proceed with criminal charges against
`
`either Anzaldi or Smith.
`
`In May 2010, Cheney requested copies of his written
`
`statement and other documentation from the CPD. The CPD
`
`
`
`3
`
`

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`Case 1:10-cv-00449-PB Document 14 Filed 01/07/11 Page 4 of 13
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`responded that the request did not include the date of the
`
`incident or Cheney‟s date of birth. The CPD advised that all
`
`they found was a record of a call on December 6, 2008, but that
`
`to release the record of that call to Cheney, he would have to
`
`prepay twenty-two dollars. Cheney made that payment and
`
`received the one-page report of Officer Crane‟s December 6,
`
`2008, call response.2 On July 2, 2010, the CPD advised Cheney
`
`that no other information or records regarding the December 6,
`
`2008, incident could be found.
`
`Cheney, dissatisfied with the result of the CPD
`
`investigation, and believing that the police refused to
`
`investigate the matter because Cheney has a criminal record for
`
`sexual assault, sent letters to the Office of the New Hampshire
`
`Attorney General. That office declined to get involved in the
`
`matter, stating that it had no jurisdiction over the offenses of
`
`which Cheney complained. Cheney again contacted the CPD,
`
`requesting “equal justice,” and the reopening of the case. CPD
`
`Deputy Chief John Duval responded by letter dated September 28,
`
`
`2Cheney has previously filed another action in this Court, Cheney
`v. Drewin, No. 10-cv-202-JD. In that case, Cheney submitted two
`letters sent to him by the CPD which were not attached to the
`instant filing. Pursuant to a separate Order, issued on today‟s
`date, the letters, dated May 14, 2010 and July 2, 2010 (No. 10-
`cv-202-JD doc. no. 9-1) will be docketed by the Clerk‟s office
`as addenda to the complaint in this matter and will be
`considered to be part of the record in this case.
`
`
`
`4
`
`

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`Case 1:10-cv-00449-PB Document 14 Filed 01/07/11 Page 5 of 13
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`2010, indicating that the CPD would take no further action or
`
`conduct any further investigation in the matter.
`
`The Claims3
`
`
`
`
`
`Cheney now raises the following claims for relief:
`
`1. The CPD defendants violated Cheney‟s Fourteenth
`
`Amendment rights by denying him equal protection of the law by
`
`discriminating against him when they refused to prosecute crimes
`
`committed against Cheney on the basis that Cheney is a convicted
`
`sexual offender.
`
`
`
`2. The CPD defendants denied Cheney his Fourteenth
`
`Amendment due process rights by failing to prosecute Anzaldi,
`
`Smith, and Murphy for crimes the committed against Cheney.
`
`
`
`3. The CPD improperly deprived Cheney of his property
`
`without due process, in violation of Cheney‟s Fourteenth
`
`Amendment rights, by charging Cheney an excessive fee for a copy
`
`of a one-page log of the report and investigation of the
`
`December 6, 2008 incident, in violation of New Hampshire‟s
`
`“Right to Know” law. See N.H. Rev. Stat. Ann. (“RSA”) § 91-A:4,
`
`IV (allowing public agencies to charge person requesting records
`
`actual cost of making copies).
`
`
`3The claims, as identified herein, will be considered to be the
`claims raised in the complaint for all purposes. If Cheney
`disagrees with the claims as identified, he must file an
`objection to this Report and Recommendation within fourteen days
`of the date it is issued, or he must properly move to amend his
`complaint.
`
`
`
`5
`
`

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`Case 1:10-cv-00449-PB Document 14 Filed 01/07/11 Page 6 of 13
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`
`
`4. The CPD violated Cheney‟s rights under the New
`
`Hampshire‟s “Right-to-Know” law, RSA § 91-A, by charging him a
`
`fee exceeding the actual cost of copying for the documents he
`
`requested.
`
`
`
`5. Anzaldi committed the tort of assault against Cheney
`
`by grabbing him around his throat.
`
`
`
`6. Smith committed the torts of conversion and fraud when
`
`he stole money from Cheney.
`
`Discussion
`
`I. Claims Brought Pursuant to 42 U.S.C. § 1983
`
`
`
`Section 1983 creates a cause of action against those who,
`
`acting under color of state law, violate federal constitutional
`
`or statutory law. See 42 U.S.C. § 19834; City of Okla. City v.
`
`Tuttle, 471 U.S. 808, 829 (1985); Wilson v. Town of Mendon, 294
`
`F.3d 1, 6 (1st Cir. 2002). In order for a defendant to be held
`
`liable under § 1983, his or her conduct must have caused the
`
`alleged constitutional or statutory deprivation. See Monell v.
`
`Dep‟t of Soc. Servs., 436 U.S. 658, 692 (1978); Soto v. Flores,
`
`
`442 U.S.C. § 1983 provides that:
`
`Every person who under color of any statute,
`ordinance, regulation, custom, or usage, of any
`State or Territory or the District of Columbia,
`subjects, or causes to be subjected, any citizen of
`the United States or other person within the
`
`jurisdiction thereof to the deprivation of any
`rights, privileges, or immunities secured by the
`Constitution and laws, shall be liable to the party
`injured in an action at law . . . .
`
`6
`
`
`
`
`
`
`
`
`
`
`
`
`
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`

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`Case 1:10-cv-00449-PB Document 14 Filed 01/07/11 Page 7 of 13
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`103 F.3d 1056, 1061-62 (1st Cir. 1997). Here, Cheney claims
`
`that the defendants who are state actors have violated equal
`
`protection and due process rights accruing to him under federal
`
`law. As such, his claims arise under § 1983.
`
`A. Equal Protection Claim
`
`
`
`
`
`The Equal Protection Clause of the Fifth Amendment
`
`guarantees that “all persons similarly situated should be
`
`treated alike.” City of Cleburne v. Cleburne Living Ctr., 473
`
`U.S. 432, 439 (1985); see Toledo v. Sanchez, 454 F.3d 24, 33
`
`(1st Cir. 2006). To allege a denial of equal protection, Cheney
`
`must assert that defendants, in treating him differently than
`
`others similarly situated, intentionally or purposefully
`
`discriminated against him on an improper basis. See Washington
`
`v. Davis, 426 U.S. 229, 239-40 (1976); In re Subpoena to Witzel,
`
`531 F.3d 113, 119-20 (1st Cir. 2008). “A discriminatory intent
`
`or purpose means that the defendants „selected or reaffirmed a
`
`particular course of action at least in part because of, not
`
`merely in spite of, its adverse effects upon an identifiable
`
`group.‟” Witzel, 531 F.3d at 119 (quoting Wayte v. United
`
`States, 470 U.S. 598, 610 (1985)).
`
`Cheney here alleges that he was treated differently than
`
`crime victims who are not sexual offenders, in that the police
`
`failed to prosecute the crimes committed against him because of
`
`his criminal record for sexual offenses. Cheney has proffered
`
`
`
`7
`
`

`
`Case 1:10-cv-00449-PB Document 14 Filed 01/07/11 Page 8 of 13
`
`no specific facts, apart from his own belief, which would
`
`support his conclusory assertion that the police were motivated
`
`not to prosecute Anzaldi, Smith, and Murphy because Cheney is a
`
`sexual offender. Further, Cheney has not pointed to any non-
`
`sexual offender crime victim, otherwise similarly situated to
`
`Cheney, who was treated differently than Cheney by the CPD.
`
`Therefore, I find that Cheney has not alleged sufficient facts
`
`to state a claim that his equal protection rights have been
`
`violated.
`
`B. Right to Prosecution
`
`Cheney‟s complaint, liberally construed, asserts that he
`
`had a constitutional right to have Anzaldi, Murphy, and Smith
`
`prosecuted. There is no cause of action under § 1983, however,
`
`for the failure to prosecute a crime, as there is no federal
`
`constitutional right to have criminal wrongdoers brought to
`
`justice. See Leeke v. Timmerman, 454 U.S. 83, 87 (1981);
`
`Nieves-Ramos v. Gonzalez-De-Rodriguez, 737 F. Supp. 727, 728
`
`(D.P.R. 1990) (citing Linda R. S. v. Richard D., 410 U.S. 614,
`
`619 (1973) (“a private citizen lacks a judicially cognizable
`
`interest in the prosecution or non prosecution of another”)).
`
`Cheney cannot, therefore, state a claim against any of the
`
`defendants named here for the failure to prosecute Anzaldi,
`
`Murphy, or Smith.
`
`
`
`8
`
`

`
`Case 1:10-cv-00449-PB Document 14 Filed 01/07/11 Page 9 of 13
`
`C. Property Claim
`
`
`
`Cheney alleges that he was deprived of his property without
`
`due process of law when he was charged an excessive fee for a
`
`photocopy of a single page document by the CPD. “[A]n
`
`unauthorized intentional deprivation of property by a state
`
`employee does not constitute a violation of the procedural
`
`requirements of the Due Process Clause of the Fourteenth
`
`amendment if a meaningful postdeprivation remedy for the loss is
`
`available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984).
`
`Accordingly, no due process claim can be brought for such a
`
`property loss under § 1983 where an adequate post-deprivation
`
`remedy is available at state law. See Lowe v. Scott, 959 F.2d
`
`323, 340 (1st Cir. 1992).
`
`
`
`In New Hampshire, a public agency, including an agency of a
`
`town or city must, upon request, provide access to certain
`
`documents. See RSA § 91-A:4(I). If copies of documents are
`
`requested, an agency may charge the actual cost of making a copy
`
`of documents provided, or may charge a fee for a copy as
`
`otherwise established by law. See RSA § 91-A:4(IV). Cheney‟s
`
`claim asserts that he was charged an excessive fee for his
`
`single-page copy. To the extent Cheney claims that he has been
`
`deprived of property without due process, however, he cannot
`
`bring that claim in a § 1983 action where an adequate remedy at
`
`law exists. The Right to Know statute provides a judicial
`
`
`
`9
`
`

`
`Case 1:10-cv-00449-PB Document 14 Filed 01/07/11 Page 10 of 13
`
`remedy for any violation of that law. See RSA § 91-A:8(III)
`
`(creating a cause of action to redress violations of the Right
`
`to Know law). Nothing in the record before the Court suggests
`
`that that remedy would be inadequate to address Cheney‟s claim.
`
`Accordingly, Cheney may not recoup the allegedly excessive fee
`
`in a § 1983 action. I recommend dismissal of this claim without
`
`prejudice to Cheney filing a state court action alleging a
`
`violation of RSA § 91-A.
`
`II. Claims Against Private Defendants
`
`Cheney names Anzaldi, Murphy, and Smith as defendants to
`
`this action, stating that they were all involved in assaulting
`
`him and stealing money from him. The United States Constitution
`
`“erects no shield against merely private conduct, however . . .
`
`wrongful.” Blum v. Yaretsky, 457 U.S. 991, 1002 (1982). A
`
`plaintiff claiming an infringement of his civil rights by
`
`individual defendants must establish that (i) the defendants
`
`deprived plaintiff of a right secured by the Constitution or
`
`laws of the United States, and that (ii) the defendants acted
`
`under “color of any statute, ordinance, regulation, custom, or
`
`usage, of any State or Territory of the District of Columbia.”
`
`42 U.S.C. § 1983; see Andresen v. Diorio, 349 F.3d 8, 13 (1st
`
`Cir. 2003). In relation to the second requirement, a private
`
`actor can be held to be a state actor only under limited
`
`circumstances, none of which are present here. See Blum, 457
`
`
`
`10
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`

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`Case 1:10-cv-00449-PB Document 14 Filed 01/07/11 Page 11 of 13
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`U.S. at 1004 (describing circumstances under which private
`
`defendants can be treated as state actors for purposes of § 1983
`
`liability); see also Jackson v. Metro. Edison Co., 419 U.S. 345,
`
`357 (1974). Because Anzaldi, Murphy, and Smith are private
`
`individuals, and not state actors, no federal civil rights claim
`
`or other federal cause of action arises out of their conduct as
`
`described in the complaint.
`
`
`
`Cheney has alleged facts concerning the assault, theft, and
`
`fraud that appear to state claims under New Hampshire law. See
`
`Silva v. Warden, 150 N.H. 372, 374, 839 A.2d 4, 6 (2003);
`
`Thompson v. Forest, 136 N.H. 215, 219, 614 A.2d 1064, 1067
`
`(1992). This court may decline to exercise supplemental
`
`jurisdiction over state law claims upon dismissing all claims as
`
`to which it has original jurisdiction. See 28 U.S.C. § 1367(c).
`
`Because I recommend dismissal of all claims over which this
`
`court has original jurisdiction, the court should decline to
`
`exercise supplemental jurisdiction over the tort claims asserted
`
`against Anzaldi and Smith, and should dismiss those claims
`
`without prejudice to Cheney filing an action asserting those
`
`claims in a state court of competent jurisdiction. As to
`
`Murphy, Cheney has failed to allege any facts suggesting that
`
`she would be liable to him in an action brought under state law.
`
`Accordingly, I recommend that the claims Cheney intended to
`
`
`
`11
`
`

`
`Case 1:10-cv-00449-PB Document 14 Filed 01/07/11 Page 12 of 13
`
`bring against Murphy be dismissed from this action with
`
`prejudice.
`
`Conclusion
`
`For the foregoing reasons, I find that Cheney has failed to
`
`state any federal claim upon which relief might be granted.
`
`Accordingly, I recommend that this action be dismissed in its
`
`entirety. If approved, the due process claims alleging a right
`
`to prosecution and the deprivation of property, and the equal
`
`protection claim, would be dismissed with prejudice, as would
`
`all claims Cheney intended to bring against Murphy. The
`
`remaining claims against the CPD, Anzaldi, and Smith arising
`
`under state law would be dismissed without prejudice to Cheney‟s
`
`filing an appropriate action in a state court of competent
`
`jurisdiction.
`
`Any objections to this Report and Recommendation must be
`
`filed within fourteen (14) days of receipt of this notice. See
`
`Fed. R. Civ. P. 72(b)(2). Failure to file objections within the
`
`specified time waives the right to appeal the district court‟s
`
`order. See Sch. Union No. 37 v. United Nat‟l Ins. Co., 617 F.3d
`
`
`
`12
`
`

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`Case 1:10-cv-00449-PB Document 14 Filed 01/07/11 Page 13 of 13
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`554, 564 (1st Cir. 2010); United States v. Lugo Guerrero, 524
`
`F.3d 5, 14 (1st Cir. 2008).
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`__________________________________
`Landya B. McCafferty
`United States Magistrate Judge
`
`
`
`
`
`
`
`
`Date: January 7, 2011
`
`cc: Michael G. Cheney, pro se
`
`
`
`LBM:jba
`
`
`
`
`13

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