Kenney v. Massachusetts State Police et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Lisa A. Kenney
v. Civil No. 16-cv-342-JL
Massachusetts State Police et al.1
REPORT AND RECOMMENDATION
Pro se plaintiff Lisa A. Kenney has filed a complaint (doc.
no. 1), an addendum to the complaint (doc. no. 6), and a motion
to subpoena records (doc. no. 7), which includes factual
assertions that the court construes as a complaint addendum.
The complaint and those addenda (doc. nos. 1, 6, and 7) are
before the court for preliminary review. See 28 U.S.C.
§ 1915(e)(2); LR 4.3(d)(2). Ms. Kenney has also filed a motion
for a preliminary injunction (doc. no. 2), which is here for a
report and recommendation as to disposition. See July 27, 2016,
Order (doc. no. 5).
1Defendants named in their individual and official
capacities are: the Massachusetts State Police (“MSP”); MSP Col.
Richard McKeon; MSP Trooper David Manning; MSP Sgt. Charles F.
Kane; MSP Trooper William P. Kenney, Jr.; Robert Long,
President, Robert Long Investigations, LLC; Robert Cerullo,
President, 20-20 Investigations; and Attorney Kathleen M.
Morrissey, President, Law Offices of Kathleen Morrissey.
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I. Preliminary Review and Identification of Claims
A. Standard
The magistrate judge conducts a preliminary review of
complaints filed in forma pauperis. The magistrate judge may
recommend to the district judge that one or more claims be
dismissed if, among other things, the court lacks jurisdiction,
the action is frivolous or malicious, or the complaint fails to
state a claim upon which relief may be granted. See 28 U.S.C.
§ 1915(e)(2); LR 4.3(d)(2). In conducting its preliminary
review, the court construes pro se complaints liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
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)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
B. Background
Ms. Kenney lived in Massachusetts until she moved to New
Hampshire in 2013. Most of the allegations in the complaint
relate to matters that occurred while Ms. Kenney lived in
Massachusetts, and all of the defendants named by Ms. Kenney are
Massachusetts residents.
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Ms. Kenney alleges that defendant Massachusetts State
Police (“MSP”) Trooper William Kenney, is her ex-husband. They
separated in 1998 and later divorced. Ms. Kenney alleges that
her ex-husband’s divorce attorney, Attorney Kathleen Morrissey,
abused the Massachusetts probate court process to harass Ms.
Kenney in 2010. Ms. Kenney further alleges that private
investigators, including defendant Robert Long, watched her as
recently as 2009 at her ex-husband’s behest, in connection with
an effort to interfere with her social security disability
benefits and/or her efforts to increase the amount of child
support she was receiving.
Ms. Kenney states that she had a romantic relationship with
defendant MSP Sgt. Charles Kane in 2006-2007, that she dated MSP
Trooper David Manning for a period of time in 2007, and that
neither of those relationships ended amicably. She alleges that
prior to 2010, Manning admitted that he had hacked her bank and
email accounts and had access to her home and car. Ms. Kenney
claims that, beginning in 2010, Kane, Manning, and/or her ex-
husband, intensified their efforts to track her daily activities
after she filed a motion in probate court in Massachusetts
requesting an increase in child support, and after she filed
police misconduct complaints asserting that those individuals
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were harassing her in and near her home, and through the
internet.
Ms. Kenney specifically alleges that a third party, named
“Darcy” or “Tippy,” acting at Manning’s behest, broke into her
car and home in Massachusetts in 2010, took things, and put a
surveillance camera into her bathroom. Ms. Kenney alleges that
images of her using the bathroom have been published on the
internet and are the topic of internet postings she attributes
to defendants or their agents. She alleges that videos of her
or other women engaged in sexual acts, taken without consent,
were published on the internet in 2008 by the defendant police
officers and their operatives.
Ms. Kenney alleges that since about 2010, she has filed
numerous misconduct complaints about Manning’s, Kane’s, and her
ex-husband’s misuse of authority and surveillance techniques.
Her complaints to MSP Col. Richard McKeon have not yielded
corrective action, and she alleges her requests for internal MSP
investigations have been ignored.
Ms. Kenney asserts that since she moved to Manchester, New
Hampshire, in 2013, Manning arranged for different third
parties, including her neighbor, “Angel” or “Angel Phillips,” to
place surveillance cameras in and around her property. She
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alleges one such camera mounted near Angel’s door shows her
coming in and out of her front door, and she has interpreted
public internet posts to indicate that Manning and his agents
plan to use a submersible camera to record her bathroom
activities. Angel, she alleges, has stood outside her door, at
Manning’s behest, threatening to shoot and kill her, and uses
epithets and slurs she recognizes as things Manning has said.
Ms. Kenney states that a new drill hole has appeared near the
shower in her apartment. As there is no camera in that hole,
she claims the drill hole is simply there to harass her.
The Complaint includes six pages of bizarre or offensive
internet postings from sources that appear to include
“isitnormal.com” and “providence.craigslist.org.” Ms. Kenney
states that the photocopies are exhibits of a large collection
of coded postings she has found on websites, including
craigslist and eBay, which she believes have been authorized by
Manning and other police operatives. All of the postings but
one -- which lacks a date -- appear to have been downloaded in
2010; most are written by people who do not appear to have used
real names; and none of them appears on its face to have been
written by or to any party in this case, about any matter at
issue here. Ms. Kenney alleges that in such postings,
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defendants and other unnamed police officers, using pseudonyms
and a coded manner of writing decipherable by Ms. Kenney, have
directed their agents on a daily basis to stalk, harass,
threaten, and steal things from her, through public postings on
craigslist.
In the complaint (doc. no. 1) and in a complaint addendum
(doc. no. 6), plaintiff reproduces names of more than fifty eBay
accounts, connected with addresses all over the United States,
Canada, and the United Kingdom, that she claims are owned by
defendants and other police officers. Plaintiff further alleges
that she has collected 20 million eBay transactions associated
with an unnumbered set of eBay account names she claims she was
able to link with coworkers of her ex-husband because they
bought things from her through eBay thirteen years ago. She
asserts that these eBay accounts are used to target her for
harassment through eBay postings, to transmit coded messages to
paid operatives to stalk and harass her on a daily basis, and
for “passing money” through PayPal without “selling anything.”
The account names reproduced or referenced in the complaint are
comprised of letters, words, and numbers that Ms. Kenney
believes relate to events in her life, to personal information
about her and/or the defendants, or to epithets, slang, and
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slurs used in craigslist posts that she attributes to Manning.
C. Identification of Claims
Ms. Kenney asserts claims that her substantive due process
rights, and her right not to be subjected to illegal searches
and seizures by police officers, have been violated. Ms. Kenney
alleges that these violations arise from defendants’ use of
illegal surveillance and other invasions of her privacy.
Specifically, she claims that defendants, or their agents, have:
threatened, stalked, and harassed her; orchestrated illegal
sting operations; posted obscene images of her on the internet;
derided her and her daughter on the internet; stolen from her;
and vandalized and trespassed on her property in Massachusetts
and New Hampshire. She further asserts that defendants have
retaliated against her for reporting misconduct, and that
defendants misused court processes in Massachusetts. She seeks
relief on behalf of herself and her daughter.
D. Claims Asserted on Behalf of Plaintiff’s Daughter
As she is proceeding without a lawyer, plaintiff cannot
assert claims on behalf of her daughter. See 28 U.S.C. § 1654;
LR 83.2(d). The claims asserted on behalf of her daughter
should therefore be dismissed without prejudice.
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E. Events Predating Plaintiff’s Move to New Hampshire
1. Statute of Limitations
The majority of plaintiff’s claims stem from events that
happened before she moved to New Hampshire in 2013. Those
claims are generally time-barred. See Buntin v. City of Boston,
813 F.3d 401, 406 (1st Cir. 2015) (three-year statute of
limitations applies to claims for relief under 42 U.S.C. § 1983,
arising in Massachusetts); Shay v. Walters, 702 F.3d 76, 80 (1st
Cir. 2012) (statute of limitations for tort actions in
Massachusetts is three years, which starts to run when events
have occurred that were reasonably likely to put plaintiff on
notice that someone may have caused her injury). Plaintiff
alleges facts establishing that she became aware of her injuries
and/or the invasion of her rights prior to her move to New
Hampshire, on or about the time when she alleges the she became
the target of surveillance, harassment, stalking, retaliation,
and posting of images and text on the internet. Accordingly,
claims arising out of those events alleged to have occurred on
or before July 26, 2013 (three years prior to Ms. Kenney’s
filing of this action on July 27, 2016), should be dismissed as
precluded by the relevant three-year statute of limitations.
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2. Venue
An additional ground for dismissing all of Ms. Kenney’s
claims arising out of the events she alleges occurred in
Massachusetts is improper venue. “In cases involving multiple
claims and defendants, the plaintiff bears the burden of
demonstrating that venue is proper with respect to each claim
and each defendant.” Get In Shape Franchise, Inc. v. TFL
Fishers, LLC, No. CV 15-12997-PBS, 2016 U.S. Dist. LEXIS 30132,
at *33-*34, 2016 WL 951107, at *12 (D. Mass. Mar. 9, 2016). All
of the defendants named by plaintiff reside in Massachusetts,
and all of the events predating plaintiff’s move to New
Hampshire in 2013 occurred in Massachusetts. Cf. 28 U.S.C.
§ 1391 (civil action may be brought in district where all
defendants reside, substantial part of events occurred or
substantial part of property is situated, or where any defendant
is subject to court’s personal jurisdiction if venue is not
otherwise proper in any court). Plaintiff’s claims arising from
those events in Massachusetts should be dismissed, as plaintiff
has not shown that this court provides the proper venue for
those claims.
F. State Agencies and Official Capacity Damages Claims
Plaintiff’s claims asserted against the Massachusetts State
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Police and her damages claims against the defendant state
officers in their official capacities should be dismissed, as
such claims are barred by the Eleventh Amendment. See Davidson
v. Howe, 749 F.3d 21, 27-28 (1st Cir. 2014); Coggeshall v. Mass.
Bd. of Reg. of Psychologists, 604 F.3d 658, 662 (1st Cir. 2010).
G. Failure to Investigate/Prosecute
Ms. Kenney asserts that defendant MSP Col. McKeon’s failure
to investigate and prosecute her claims has violated her federal
constitutional rights. Plaintiff, however, does not have a
protected interest in having alleged wrongdoers investigated or
prosecuted. Cf. 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 nonprosecution of
another”)). Accordingly, Ms. Kenney’s federal claims arising
from her allegations of inaction on her misconduct complaints
should be dismissed for failure to state a claim.
H. Remaining Claims
This court may dismiss claims asserted in complaints filed
without prepayment of the filing fee, if the action is
frivolous, malicious, or fails to state a claim upon which
relief can be granted. 28 U.S.C. § 1915(e)(2). Ms. Kenney’s
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remaining claims, relating to events she alleges occurred within
the last three years, and in New Hampshire, are appropriately
dismissed, pursuant to § 1915(e)(2).
Plaintiff has alleged that defendant Massachusetts State
Police troopers and other police officers, and their agents,
cloaked in anonymity, have used seemingly inconsequential and/or
mean-spirited comments on the internet, with common or
idiosyncratic typing errors and misspellings, to transmit coded
messages through postings on publicly accessible internet sites,
to tell paid miscreants to burglarize and threaten plaintiff,
and to stalk, harass, and/or install a submersible camera in her
shower or toilet. Such allegations, construed in the context of
plaintiff’s strained explanation of how she decodes those
postings and identifies the authors and intended readers, are
wholly incredible and appear to be the product of delusion.
[A] court may dismiss a claim as factually frivolous only
if the facts alleged are “clearly baseless,” a category
encompassing allegations that are “fanciful,” “fantastic,”
and “delusional.” As those words suggest, a finding of
factual frivolousness is appropriate when the facts alleged
rise to the level of the irrational or the wholly
incredible.
Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (quoting Neitzke
v. Williams, 490 U.S. 319, 325, 327-28 (1989)).
While this court has no reason to question the intensity
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and sincerity of plaintiff’s self-described fear for her safety
and security, plaintiff has failed to state any claim upon which
this court may grant relief. Her complaint should be dismissed
pursuant to 28 U.S.C. § 1915(e)(2).
II. Preliminary Injunction
To obtain a preliminary injunction, a plaintiff must
establish a likelihood of success on the merits, a likelihood of
irreparable harm in the absence of preliminary relief, a showing
that the balance of equities tips in plaintiff’s favor, and a
showing that an injunction is in the public interest. Glossip
v. Gross, 135 S. Ct. 2726, 2736 (2015). “‘[T]he sine qua non of
this four-part inquiry is likelihood of success on the merits:
if the moving party cannot demonstrate’” a likelihood of success
on the merits, “‘the remaining factors become matters of idle
curiosity.’” Sindicato Puertorriqueño de Trabajadores v.
Fortuño, 699 F.3d 1, 10 (1st Cir. 2012) (citation omitted). The
burden of proof on a motion for preliminary injunction is on the
movant. See Esso Std. Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18
(1st Cir. 2006).
For the reasons discussed above, Ms. Kenney’s filings in
this matter fail to state any claim upon which relief can be
granted by this court. Ms. Kenney has thus failed to
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demonstrate a substantial likelihood of success on the merits,
and for that reason, the motion for a preliminary injunction
(doc. no. 2) should be denied.
Conclusion
For the foregoing reasons, the district judge should
dismiss this action and should deny the motion for a preliminary
injunction (doc. no. 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). Failure to file
objections within the specified time waives the right to appeal
the district court’s order. See Garayalde-Rijos v. Mun. of
Carolina, 747 F.3d 15, 21-22 (1st Cir. 2014).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 5, 2016
cc: Lisa A. Kenney, pro se
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