Frost et al v. NH, State of

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Douglas E. Frost and
Jennifer A. Frost
v. 	Civil No. 18-cv-1094-PB
State of New Hampshire
REPORT AND RECOMMENDATION
Plaintiffs Douglas E. Frost and Jennifer A. Frost initiated
this case, brought pursuant to 42 U.S.C. § 1983, by filing a
“Petition for Ex-Parte Injunction” (Doc. No. 1). 	Naming the
State of New Hampshire as the defendant, plaintiffs seek an
order preventing the issuance and/or execution of a writ of
possession in a state court landlord-tenant action in which the
Frosts are defendants, Parker v. Frost, No. 458-2018-LT-00163
(N.H. Cir. Ct., 9th Cir.-Dist. Div.-Milford) (“Parker”).
The court has construed the plaintiffs’ petition as a
complaint in a new civil action seeking a temporary restraining
order (“TRO”) and preliminary and permanent injunctive relief.
The district judge denied plaintiffs’ request for a TRO and
referred the matter to the undersigned magistrate judge for a
Report and Recommendation (“R&R”) as to plaintiffs’ request for
a preliminary injunction. 	See Nov. 27, 2018 Order (Doc. No. 3);
Nov. 28, 2018 Order (Doc. No. 4). 	Because plaintiffs are
proceeding pro se and in forma pauperis, the complaint is also
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before the court for preliminary review under LR 4.3(d)(2) and
28 U.S.C. § 1915(e)(2).
Background
In October 2018, the Frosts’ landlord brought an action
against the Frosts in state court, seeking a writ of possession
for nonpayment of rent. 	See Parker (Index No. 1). 	On November
13, 2018, the state court issued an Order in that matter
granting the Frosts’ landlord a writ of possession. 	See id.
(Index No. 10); Doc. No. 1, at 8.1 	On November 14, 2018, the
court sent the parties notice of the November 13, 2018 order,
with a copy of that order. 	See Doc. No. 1, at 7.
Plaintiffs allege that on November 21, 2018, they attempted
to file a “Notice of Intent to Appeal” in the state court, as
required by, and in compliance with, N.H. Rev. Stat. Ann.
(“RSA”) § 540:20.2 	Plaintiffs allege that the state court clerk
refused to accept the Frosts’ Notice of Intent to Appeal based
on the clerk’s incorrect calculation of the seven-day period for
1The state court’s November 13, 2018 order is docketed in
Parker as having issued on November 14, 2018, but the order
itself, a copy of which plaintiffs have attached to the
complaint, is dated November 13, 2018. 	See Doc. No. 1, at 8.
2RSA § 540:20 states, in pertinent part, that “[a]ny party
to [a landlord-tenant] action . . . shall, within 7 days of the
date of the notice of judgment, file in the district court a
notice of intent to appeal to the supreme court.”
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filing that document, and resulting conclusion that the Notice
of Intent to Appeal had to be filed by November 20, 2018.
The Frosts then filed this action, challenging the
constitutionality of RSA § 540:20. 	Plaintiffs assert that RSA
§ 540:20 “as written prevented [the plaintiffs] from filing a
timely Notice of Appeal. . ., in that the Clerk of such stated
court in her interpretation of the law arbitrarily prohibited
the plaintiff[s] from filing there [sic] Notice of Appeal,” in
violation of their Fourteenth Amendment due process rights.3
Doc. No. 1, at 2. 	Plaintiffs seek injunctive relief “stopping
the issuance of any Possessory Action relative to [Parker] until
the plaintiff can obtain concurrance [sic] from the court on the
matters of law contained within the present civil action.” 	Id.
at 4.
Discussion
I. 	Preliminary Review
A. 	Standard
The court may dismiss claims asserted in a complaint filed
in forma pauperis, if the court lacks subject matter
jurisdiction, a defendant is immune from the relief sought, the
complaint fails to state a claim, or the action is frivolous or
malicious. 	See 28 U.S.C. § 1915(e)(2); LR 4.3(d)(2). 	In
3Plaintiffs also assert, without explanation, a violation of
their Eleventh Amendment rights. 	The Eleventh Amendment,
however, is not a source of privately enforceable rights.
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determining whether a pro se complaint states a claim, the court
must construe the complaint liberally. 	See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam). 	To survive preliminary
review, the complaint must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief.’” 	See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). 	The
court treats as true all well-pleaded factual allegations, and
construes reasonable inferences in plaintiff’s favor. 	See
Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir.
2011).
B. 	Eleventh Amendment Immunity
The only defendant the Frosts have named to this 42 U.S.C.
§ 1983 action is the State of New Hampshire. 	The Eleventh
Amendment bars this court from hearing claims for damages and
injunctive relief asserted against the state. 	See Town of
Barnstable v. O’Connor, 786 F.3d 130, 138 (1st Cir. 2015).
Accordingly, the district judge should dismiss this action,
without prejudice to the plaintiffs’ ability to file a new
lawsuit, naming one or more appropriate defendants who are not
immune from their claims.
II. 	Preliminary Injunction
In their complaint, the Frosts seek preliminary injunctive
relief to prevent the issuance or execution of a writ of
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possession in Parker. 	“‘A plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities tips
in his favor, and that an injunction is in the public
interest.’” 	Glossip v. Gross, 135 S. Ct. 2726, 2736 (2015)
(citation omitted); see also Voice of the Arab World, Inc. v.
MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011).
Demonstrating a likelihood of success on the merits is a
prerequisite to obtaining preliminary injunctive relief. 	See
Esso Std. Oil Co. v. Monroig–Zayas, 445 F.3d 13, 18 (1st Cir.
2006) (“if the moving party cannot demonstrate that he is likely
to succeed in his quest,” preliminary injunctive relief is
properly denied without further analysis).
As explained above, the plaintiffs have failed to state a
claim in this action upon which relief can be granted.
Accordingly, they have failed to show a likelihood of success on
the merits of their federal claims.
Even if plaintiffs had named a proper defendant, plaintiffs
have failed to demonstrate that irreparable harm will result if
the court does not issue the requested injunction. 	This court
does not sit as a court with authority to review the Circuit
Court’s decision to issue a writ of possession. 	Plaintiffs, who
do not appear to have filed any post-judgment action in the
Circuit Court seeking judicial relief from the court clerk’s
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decision, or any action in the New Hampshire Supreme Court
relating to the matters underlying this case, have not shown
that any relief this court could provide would avert any
irreparable harm, for which they lack any adequate remedy at
law. 	Accordingly, the district judge should deny their request
for a preliminary injunction.
Conclusion
For the foregoing reasons, the district judge should deny
the plaintiffs’ request for preliminary injunctive relief and
dismiss this action in its entirety. 	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); LR
7.2(d). 	The fourteen-day period may be extended upon motion.
Failure to file objections 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 Johnstone
United States Magistrate Judge
April 5, 2019
cc: 	Douglas E. Frost, pro se
Jennifer A. Frost, pro se
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