Brady v. Family Dollar, Inc. et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Darren Brady
v. 	Case No. 19-cv-00616-SM
Family Dollar, Inc.,
Janine MacMahan, and
Howard Levine
REPORT AND RECOMMENDATION
Before the court is pro se Plaintiff Darren Brady’s
complaint filed pursuant to 42 U.S.C. § 1983, alleging that the
defendants violated his constitutional rights and his rights
under state law. 	(Doc. No. 1). 	The complaint is before this
magistrate judge for preliminary review, pursuant to 28 U.S.C. §
1915(e)(2) and LR 4.3(d)(1).
Background
Plaintiff alleges that Defendant Janine MacMahan,
identified as a Family Dollar, Inc. store manager, called the
police on December 27, 2017, while Plaintiff was trying to pay
for a cookie. 	See Compl. (Doc. No. 1), at 2. 	Plaintiff alleges
further that MacMahan screamed and yelled racist, anti-Semitic,
and homophobic slurs at him in front of other customers. 	See
id.
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Plaintiff asserts that the police came to the store with
sirens on and lights flashing and that the incident prejudiced
him in front of store customers, his family, his friends, and
the entire community. 	See id. at 4. 	He also asserts that he
lost his job because “[p]eople don’t [sic] want to trust other
people being qustioned [sic] by the police.” 	Id. 	According to
Plaintiff, the responding officer looked at the store video tape
and told MacMahan that Plaintiff had done nothing wrong. 	See
id.
Plaintiff also alleges Defendant Howard Levine, identified
as the owner of the Family Dollar, Inc. store, refuses to
discipline workers or rectify employees’ racist, anti-Semitic
and homophobic name-calling. 	See id. at 3. 	Plaintiff seeks
$150,000 in damages and the court filing fee. 	See Compl. (Doc.
No. 1), at 6.
The attachments to the complaint indicate Plaintiff filed a
defamation claim arising from the same incident against the same
defendants in state court. 	The Superior Court dismissed the
action. 	See Brady v. Family Dollar, Inc., No. 18-cv-015 (N.H.
Super. Ct., Coos Cnty. June 29, 2018) (Doc. No. 1-2), at 56-57.
The New Hampshire Supreme Court affirmed the Superior Court’s
order dismissing the complaint, before Plaintiff filed this
action. 	See Brady v. Family Dollar, Inc., No. 2018-0443 (N.H.
Mar. 29, 2019) (Doc. No. 1-2), at 58.
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Preliminary Review Standard
The court reviews complaints filed by pro se plaintiffs to
determine, among other things, whether the plaintiff has
asserted any claim upon which relief might be granted. 	See 28
U.S.C. § 1915(e)(2), LR 4.3(d)(1). 	In determining whether a pro
se pleading states a claim, the court construes the pleading
liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(citation omitted). 	Disregarding any legal conclusions, the
court considers whether the factual content in the pleading and
inferences reasonably drawn therefrom, taken as true, state a
claim to relief. 	Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-
03 (1st Cir. 2013) (citations omitted). 	The court may dismiss
an action on preliminary review based on an affirmative defense,
if the facts alleged in the complaint, or matters susceptible of
judicial notice, conclusively establish the elements of the
affirmative defense. 	See Gray v. Evercore Restructuring LLC,
544 F.3d 320, 324 (1st Cir. 2008).
Discussion
I. 	Rooker-Feldman Doctrine
The Rooker-Feldman doctrine holds that, as a rule, federal
district courts should not sit in direct review of state court
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decisions. 	See D.C. Ct. App. v. Feldman, 460 U.S. 462 (1983);
Rooker v. Fid. Trust Co., 263 U.S. 413 (1923). 	The doctrine
divests this court of jurisdiction over “‘cases brought by
state-court losers’” complaining of injuries caused by state-
court judgments rendered before the district court proceedings
commenced and “‘inviting district court review and rejection of
[the state court’s] judgments.’” 	Skinner v. Switzer, 562 U.S.
521, 531, 532 (2011) (quoting Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 284 (2005)). 	The Federal District
Courts lack subject-matter jurisdiction over such cases, as “28
U.S.C. § 1257 ‘vests authority to review a state court's
judgment solely in th[e] {Supreme] Court.’” 	Skinner, 562 U.S.
at 531-532 (quoting Exxon, 544 U.S. at 292).
Plaintiff’s state lawsuit against these defendants was
dismissed for failure to state a claim upon which relief may be
had. 	See Brady, No. 18-cv-015, aff’d Brady, No. 2018-0443 (Doc.
No. 1-2), at 57, 58. 	That dismissal constitutes a final
judgment. 	See, e.g., Griffin v. Town of Whitefield, No. CIV.
07-CV-243-JL, 2008 WL 3166473, at *3 (D.N.H. Aug. 5, 2008),
aff'd sub nom. Griffin v. Whitefield, 341 F. App’x 655 (1st Cir.
2009) (“It is well settled that . . . dismissals for failure to
state a claim, . . . constitute final judgments on the merits.”
(citing AVX Corp. v. Cabot Corp., 424 F.3d 28, 30 (1st Cir.
2005))). 	To the extent Plaintiff is asking this court to review
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and reject the state courts’ judgment, the Rooker-Feldman
doctrine applies, and Plaintiff’s complaint should be dismissed
II. 	Res Judicata
Res judicata provides an independent basis for dismissing
this action. 	“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.” 	See Dillon v.
Select Portfolio Servicing, 630 F.3d 75, 80 (1st Cir. 2011)
(citation omitted). 	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., 20 A.3d 890, 894
(N.H. 2011) (citation omitted) (emphasis added). 	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.” 	Id.
Plaintiff names the same defendants in the instant
complaint as he did in his state lawsuit. 	Thus, the first
element of res judicata is met. 	See id.
The only cause of action the Superior Court identified as
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having been raised in the state complaint was for defamation, a
tort that is actionable under state law. 	See Brady, No. 18-cv-
015 (Doc. No. 1-2), at 57. 	In his federal complaint, Plaintiff
alleges defamation as well as violations of the Federal
Constitution and various state laws. 	New Hampshire, however,
defines a “cause of action” as “all theories on which relief
could be claimed on the basis of the factual transaction in
question.” 	Brooks, 20 A.3d at 898 (citation and internal quote
omitted). 	Here, the same factual transaction—the cookie
incident-forms the basis of all Plaintiff’s claims in state and
federal court. 	As such, the second res judicata element is met.
See id. at 894
Finally, the Superior Court dismissed Plaintiff’s complaint
for failure to state a claim upon which relief may be granted,
see Brady, No. 18-cv-015 (Doc. No. 1-2), at 57 (citing Indep.
Mech. Contractors, Inc. v. [Gordon T.] Burke & Sons, Inc., 138
N.H. 110, 118 (1993)), and the New Hampshire Supreme Court
affirmed that order before Plaintiff filed this action in
federal court, see Brady, No. 2018-0443 (Doc. No. 1-2), at 58.
As stated previously, a dismissal for failure to state a claim
constitutes a final judgment on the merits. 	See Griffin, No.
CIV. 07-CV-243-JL, 2008 WL 3166473, at *3; Moore v. Lebanon, 69
A.2d 516, 518 (N.H. 1949) (“A judgment is upon the merits when
it contains an order that there shall be no further action for
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the same cause.”). 	Accordingly, the third res judicata element
is met. 	Brooks, 20 A.3d at 894.
The instant complaint asserts a right to relief under
federal and state laws arising from the same allegations that
gave rise to the defamation claim in Plaintiff’s state action.
Consequently, the claims asserted here are precluded by res
judicata, see id., and the district judge should dismiss the
complaint.
III. Failure to State a Federal Claim
A. 	Section 1983
Plaintiff contends the defendants have violated his Fourth,
Fifth, Thirteenth, and Fourteenth Amendment rights under the
United States Constitution. 	The Civil Rights Act, 42 U.S.C. §
1983, “provides a cause of action for state deprivations of
federal rights,” Nieves v. Bartlett, No. 17-1174, 2019 U.S.
LEXIS 3556, at *10, 2019 WL 2257157, at *4 (U.S. May 28, 2019).
Plaintiff does not allege facts demonstrating, or from which it
could be reasonably inferred, that the defendants named in this
civil action are state actors subject to suit under § 1983.
Accordingly, Plaintiff has failed to state a claim for which
relief may be granted under § 1983, and the district judge
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should dismiss the § 1983 claims asserted against the
defendants.
B. 	Employment Discrimination
In his complaint, Plaintiff lists websites that appear to
be related to employment law. 	See Compl. (Doc. No. 1), at 5.
The facts alleged in the complaint are that Plaintiff was a
customer of the Family Dollar Store on December 27, 2017, when
the cookie incident occurred. 	The complaint does not allege any
facts from which it can reasonably be inferred that Plaintiff
was an employee of the Family Dollar Store before, during or
after that incident.
As such, the complaint fails to state a claim for relief
for employment discrimination. 	Consequently, the district judge
should dismiss Plaintiff’s claim of employment discrimination,
to the extent Plaintiff is attempting to raise such a claim.
C. 	The Anti-Terrorism and Effective Death Penalty Act of
1996
For reasons he does not explain, Plaintiff cites the Anti-
Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) in
his complaint. 	See Compl. (Doc. No. 1), at 2, 3. 	The AEDPA
applies to applications for a writ of habeas corpus by those in
custody pursuant to a federal or state court judgment, see 28
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U.S.C. §§ 2241, 2254, and 2255, and by those in pre-trial
detention, see § 2241.
It cannot be reasonably inferred from the facts alleged,
that Plaintiff was in custody because of the cookie incident
when he filed this complaint. 	He, therefore, has no cause of
action under the AEDPA, and the district judge should dismiss
any claim for relief Plaintiff may be attempting to raise under
that Act.
IV. 	State Law Claims
Plaintiff alleges in conclusory fashion that the defendants
violated New Hampshire’s Bullying Law, cited in the complaint as
“RSA 193-F: {b} Section 193-F:4,” the "Law Against
Discrimination, cited in the complaint as "NH RSA 354-A - TITLE
XXXI -TRADE AND COMMERCE,” and “Chapter 358-A Regulation of
Business Practices for Consumer Protection” and “Section 358-A:1
State Commission for Human Rights.” 	Compl. (Doc. No. 1) at 2,3.
He also alleges defamation of character against Defendant
MacMahan. 	Id. at 4.
A federal court exercising original jurisdiction over
federal claims also has “supplemental jurisdiction over all
other claims that are so related to the claims in the action
within such original jurisdiction that they form part of the
same case or controversy under Article III of the United States
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Constitution.” 	28 U.S.C. § 1367(a). 	Plaintiff’s federal claims
should be dismissed on res judicata grounds, for lack of subject
matter jurisdiction, and for failure to state a claim upon which
relief may be granted. 	No other basis for the court’s original
jurisdiction over the state law claims appears to exist. 	To the
extent Plaintiff’s state law claims are not barred by res
judicata or the Rooker-Feldman doctrine, then, this court should
decline to exercise its supplemental jurisdiction over the state
law claims and should dismiss them, pursuant to 28 U.S.C. §
1367(c)(3).
Conclusion
For the foregoing reasons, the district judge should
dismiss Plaintiff’s complaint. 	See 28 U.S.C. § 1915(e)(2). 	Any
objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The fourteen-day period may be extended upon
motion. 	Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
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June 19, 2019
cc: 	Darren Brady, pro se
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