Trimbur v. Hooksett, NH, Town of et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Timothy Trimbur
v. 	Case No. 18-cv-1175-PB
Town of Hooksett and
Hooksett District Court
REPORT AND RECOMMENDATION
Timothy Trimbur has commenced an action in this court by
filing a document he has entitled “Ex Parte Petition for a Writ
of Habeas Corpus” (Doc. No. 1). 	This matter has been opened as
a habeas action and is therefore before the court for
preliminary review, to determine whether Trimbur’s petition is
facially valid and may proceed, pursuant to Rules 1(b) and 4 of
the Rules Governing Section 2254 Cases (“§ 2254 Rules”) and LR
4.3(d)(4)(A).
Preliminary Review Standard
A judge is required to examine a petition for habeas
relief, and if “it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief
in the district court, the judge must dismiss the petition.”
§ 2254 Rule 4. 	“Federal courts are authorized to dismiss
summarily any habeas petition that appears legally insufficient
on its face.” 	McFarland v. Scott, 512 U.S. 849, 856 (1994).
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The court construes Trimbur’s pleadings liberally, in light of
his pro se status. 	See Dutil v. Murphy, 550 F.3d 154, 158 (1st
Cir. 2008).
Background
Trimbur is a professional timber harvester. 	The Town of
Hooksett, New Hampshire (“Town”) brought a civil action in state
court against Trimbur for violating a Town noise ordinance while
he was legally harvesting timber on the private property of
Louise Maple. 	See Town of Hooksett v. Louise Marple and Timothy
Trimbur, No. 447-2017-CV-00089 (N.H. Cir. Ct., 6th Cir.-Dist.
Div.-Hooksett (“Hooksett District Court”))) (filed Oct. 27, 2017
(Dkt. No. 1)). 	Judgment entered against Trimbur in that matter
in the amount of $6000, see id., Nov. 6, 2018 Order (Dkt. No.
39), and the Hooksett District Court denied Trimbur’s motion to
vacate the order and judgment. 	See id., Nov. 20, 2018 Order.
It does not appear that Trimbur appealed the Hooksett District
Court’s judgment to the New Hampshire Supreme Court.
Claims
In this action, brought against the Town and the Hooksett
District Court, Trimbur seeks relief on the basis that the state
court judgment violated his federal constitutional rights.
Trimbur asserts the following claims:
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1. 	The Town denied Trimbur his Fourteenth Amendment right
to equal protection of the laws when it brought a civil
action against Trimbur for a noise ordinance violation, for
the same conduct engaged in by another timber harvester in
Hooksett who was not prosecuted.
2. 	The Town violated Trimbur’s Fourteenth Amendment due
process rights by entrapping him, in that the Town enticed
Trimbur to harvest timber by granting him a work permit,
when Trimbur would not have harvested timber had the permit
not been granted, and then prosecuted Trimbur for violating
a noise ordinance by engaging in the timber harvesting for
which the Town had granted him a permit.
3. 	The Hooksett District Court improperly entered
judgment against Trimbur in a prosecution that violated
Trimbur’s Fourteenth Amendment rights to equal protection
and due process.
4. 	The defendants conspired to violate Trimbur’s federal
constitutional rights, in violation of 18 U.S.C. §§ 241,
242.
5. 	The defendants violated Louise Marple’s Fourteenth
Amendment rights by depriving her of the ability to have
her timber harvested, without paying her just compensation
for the deprivation.
Discussion
I. 	Availability of Habeas Corpus Relief
A. 	“In Custody” Requirement
As stated above, Trimbur has characterized this action as
arising in habeas corpus. 	A federal district court may
entertain a habeas corpus petition only from a petitioner “in
custody in violation of the Constitution or laws or treaties of
the United States.” 	28 U.S.C. § 2241(c)(3); see also id. at §
2254(a); Maleng v. Cook, 490 U.S. 488, 490 (1989). 	The “in
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custody” requirement of the federal habeas statute is
jurisdictional. 	See Maleng, 490 U.S. at 490. 	Custody is
determined as of the date the habeas petition is filed. 	See
Carafas v. LaVallee, 391 U.S. 234, 238-40 (1968); Leitao v.
Reno, 311 F.3d 453, 455 (1st Cir. 2002).
Restraints short of incarceration may satisfy the “in
custody” requirement where an applicant is subject to
significant restraint on his or her liberty that is “not shared
by the public generally.” 	Jones v. Cunningham, 371 U.S. 236,
240 (1963). 	However, a monetary civil judgment does not meet
that threshold. 	See Parmaei v. Smith, 228 F. App’x 264, 264
(4th Cir. 2007) (action challenging state court’s civil judgment
against habeas petitioner unrelated to petitioner’s custody
status not properly characterized as habeas action); Sevier v.
Turner, 742 F.2d 262, 269 (6th Cir. 1984) (neither a fine nor a
“civil money judgment” “create custody for purposes of §§ 2241
and 2254”); see also Watson v. Coakley, No. CIV.A. 11-11697-DJC,
2011 WL 6046529, at *1, 2011 U.S. Dist. LEXIS 138869, at *3-*5
(D. Mass. Dec. 2, 2011) (collecting cases).
In this action, Trimbur seeks habeas relief from a civil
money judgment. 	At the time he filed this case, Trimbur was not
in actual physical custody, or subject to any restraint on his
liberty that satisfies the “in custody” requirement for habeas
relief. 	Accordingly, Trimbur cannot satisfy the custody
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requirement of a habeas action, and the district judge should
dismiss his habeas petition for lack of jurisdiction.
B. 	Certificate of Appealability
Trimbur has not specifically stated whether his habeas
petition is asserted under § 2241 or § 2254. 	The § 2254 Rules
require the court to “issue or deny a certificate of
appealability [(“COA”)] when it enters a final order adverse to
the party” in a § 2254 action. 	§ 2254 Rule 11(a). 	Where the
court denies a request for habeas relief on procedural grounds,
a COA should issue only if “jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct
in its procedural ruling.” 	Slack v. McDaniel, 529 U.S. 473, 484
(2000). 	A COA is not required to appeal the denial of a § 2241
petition.
Assuming, without deciding, that this court is required to
issue or deny a COA in this case, a COA should not be issued.
Reasonable jurists would not find this court’s jurisdictional
ruling to be debatable.
II. 	Civil Rights Claims (Claims 1-3)
In the claims identified in this Report and Recommendation
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(“R&R”) as Claims 1-3, Trimbur asserts claims alleging that the
Town and the Hooksett District Court violated his civil rights.
The only relief Trimbur seeks here for those alleged violations
is for this court to “relieve him of the unlawful prosecution”
to which he was subject by the defendants.
Even if Trimbur had brought this case as a civil rights
action under 42 U.S.C. § 1983, rather than as a habeas action,
the Rooker-Feldman doctrine would deprive this court of
jurisdiction to grant Trimbur the relief he seeks. 	See Rooker
v. Fid. Tr. Co., 263 U.S. 43 (1923) and D.C. Ct. App. v.
Feldman, 460 U.S. 462 (1983). 	The Rooker-Feldman doctrine
“stand[s] for the proposition that only the Supreme Court has
the power to reverse or modify final state court judgments” and
“divests ‘lower federal courts of jurisdiction to hear certain
cases brought by parties who have lost in state court.’” 	Sinapi
v. R.I. Bd. of Bar Exam’rs, 910 F.3d 544, 549 (1st Cir. 2018)
(citation omitted). 	“The doctrine applies to . . . ‘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 those judgments.’” 	Id. (quoting Exxon Mobil Corp.
v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).1
1Trimbur invokes the Supremacy Clause, contained in Article
VI of the United States Constitution, as a basis for this
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Accordingly, the court declines to redocket the petition
filed in this matter as the complaint in a new civil case, as
the court would not have jurisdiction over Trimbur’s claims for
relief from judgment in a civil rights action. 	However, Trimbur
is not barred from filing a new civil case, asserting claims for
damages or injunctive relief, for violations of his federal
constitutional rights, if such claims are not “inextricably
intertwined” with the related issues Trimbur adjudicated in the
state court proceedings. 	See Sheehan v. Marr, 207 F.3d 35, 40
(1st Cir. 2000) (Rooker-Feldman doctrine forecloses federal
court jurisdiction over claims “inextricably intertwined with
the state court claims”). 	“A federal claim is inextricably
intertwined with the state court claims ‘if the federal claim
succeeds only to the extent that the state court wrongly decided
the issue before it.’” 	Id.
III. 18 U.S.C. §§ 241 & 242 (Claim 4)
In his claim identified in this R&R as Claim 4, Trimbur
alleges that the defendants’ conduct, described in his petition,
constituted a violation of 18 U.S.C. §§ 241 & 242. 	Sections 241
court’s authority to relieve him from the state court judgment.
However, the Rooker-Feldman doctrine deprives this court of
jurisdiction “even when the party invoking federal jurisdiction
asserts a claim under the Supremacy Clause or some other
important aspect of federal law.” 	Gutierrez v. Vigil, No. CIV
04-618 MCA/ACT, 2005 WL 8164225, at *3 (D.N.M. Feb. 11, 2005).
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and 242 authorize the government to criminally prosecute certain
conspiracies to violate an individual’s civil rights of an
individual. 	A private party has no standing to seek relief in a
civil action for allegedly criminal conduct. 	See Linda R.S. v.
Richard D., 410 U.S. 614, 619 (1973) (individual has no
“judicially cognizable interest in the prosecution or
nonprosecution of another”). 	Accordingly, the district judge
should dismiss the claim identified above as Claim 4.
IV. 	Claim Asserted on Behalf of Louise Marple (Claim 5)
In the claim identified in this Order as Claim 5, Trimbur
has asserted the rights of Louise Marple, the individual who
hired Trimbur to harvest timber on her property. 	Pro se
litigants such as Trimbur, however, cannot litigate on behalf of
others in this court. 	See 28 U.S.C. § 1654; LR 83.2(d).
Accordingly, Trimbur cannot advance claims on behalf of Mrs.
Marple or assert claims based on violations of Mrs. Marple’s
rights. 	The district judge should dismiss Claim 5 on that
basis.
Conclusion
For the foregoing reasons, the district judge should
dismiss this action in its entirety. 	Claims 1-3, as identified
in this R&R, should be dismissed for lack of jurisdiction,
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without prejudice to Trimbur’s ability to properly challenge the
state court judgment challenged here in a court of competent
jurisdiction, and/or bring a new civil rights action here
asserting claims for relief cognizable in this court. 	The
district judge should dismiss Claims 4 and 5, as identified
above, with prejudice. 	Finally, the district judge should
decline to issue a COA to the extent this action was brought
under 28 U.S.C. § 2254.
Any objections to this R&R 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 R&R 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
January 9, 2019
cc: 	Timothy Trimbur, pro se
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