Booth v. NH, State of et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Christopher Booth et al.1
v. Civil No. 17-cv-170-LM
State of New Hampshire, Colin Van Ostern,
City of Concord, and Mayor Jim Bouley
REPORT AND RECOMMENDATION
Plaintiff Christopher Booth, proceeding pro se and in forma
pauperis, has filed a complaint (Doc. No. 1), accompanied by a
motion for a preliminary injunction (Doc. No. 2), seeking to
stop the construction of a roundabout in Concord, New Hampshire.
The complaint is before the court for preliminary review
pursuant to LR 4.3(d)(2) and 28 U.S.C. § 1915(e)(2). The motion
for a preliminary injunction has been referred to the
undersigned magistrate judge for a report and recommendation.
See Doc. No. 4.
Background
Liberally construed, the complaint asserts that the City of
Concord and the State of New Hampshire are building a roundabout
1Booth has filed this action without a lawyer on behalf of
“We the People.” Pro se parties cannot litigate the claims of
other parties in federal court. See O’Diah v. Volkswagen of
Am., Inc., 91 F. App’x 159, 160 (1st Cir. 2004); see also 28
U.S.C. § 1654. Accordingly, the court construes Booth’s claims
as asserted by him in his individual capacity.
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near Exit 16 off Interstate 93 in Concord, New Hampshire. The
complaint suggests that Booth lives in the area affected by the
project. Booth opposes the project because he asserts that
people approaching the area at high speed will be killed or
injured in traffic accidents if a roundabout is constructed.
Construed liberally, the complaint asserts a substantive due
process claim, arising under 42 U.S.C. § 1983.
Discussion
I. Preliminary Review
A. Standard
The magistrate judge in this court conducts a preliminary
review of complaints filed in forma pauperis. See LR 4.3(d)(2).
The magistrate judge may recommend to the district judge that
claims be dismissed if, among other things, the court lacks
jurisdiction, a defendant is immune from the relief sought, or
the complaint fails to state a claim upon which relief may be
granted. See 28 U.S.C. § 1915(e)(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). 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).
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B. Claims against City and Mayor Jim Bouley
Plaintiff is challenging local government executive action
on the basis that it violates substantive due process. In
determining whether plaintiff has stated a claim upon which
relief can be granted, “‘the threshold question is whether the
behavior of the governmental officer is so egregious, so
outrageous, that it may fairly be said to shock the contemporary
conscience.’” Ramos-Piñero v. Puerto Rico, 453 F.3d 48, 53 (1st
Cir. 2006). “[N]egligently inflicted harm is ‘categorically
beneath the threshold’ of a constitutional violation,” while
“behavior ‘at the other end of the culpability spectrum’—that
is, behavior ‘intended to injure in some way unjustifiable by
any government interest’—is the sort of official action most
likely to ‘shock the conscience.’” Id. (citations omitted).
In considering whether the roundabout project “shocks the
conscience” and may be deemed to violate plaintiff’s right of
substantive due process, the court looks at analogous cases. In
Collins v. City of Harker Heights, 503 U.S. 115 (1992), the
Supreme Court considered whether a city could be held liable for
violating the substantive due process rights of a sanitation
worker, who died from exposure to sewer gas because of the
city’s failure to train, warn, or issue proper equipment to its
workers. The Court determined that although the allegations may
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have given rise to a tort claim, the allegations failed to shock
the conscience in the manner needed to state a substantive due
process claim. Id. at 128. Similarly, in Ramos-Piñero, the
court affirmed the dismissal of substantive due process claims
of a plaintiff alleging that municipal officials were
deliberately indifferent, in failing to address a safety risk
presented by an open manhole in the area of a school, which
resulted in the death of a boy who fell into the uncovered
manhole, when it was obscured by flood waters. See Ramos-
Piñero, 453 F.3d at 54.
Creating and maintaining public works such as sewers,
roads, and sidewalks “involve a host of policy choices.”
Local governments must decide the appropriate level of
resources, which are necessarily limited, to devote to
those works. . . . Government actors must also determine,
as a policy matter, how to make these decisions and what
resources to devote to assessing the various competing
needs. Such questions are best answered by locally elected
representatives and their appointees “rather than by
federal judges interpreting the basic charter of Government
for the entire country.”
Id. (footnote omitted) (quoting Collins, 503 U.S. at 128-29).
“Moreover, each policy option will inevitably carry its own
risks—risks that will, in many cases, be well-known to the
policy-makers. Yet a ‘substantive due process violation does
not arise whenever the government’s choice prompts a known risk
to come to pass.’” Ramos-Piñero, 453 F.3d at 54 n.8 (citation
omitted).
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The reasoning employed in Ramos-Piñero and Collins applies
here. Booth’s complaint similarly fails to assert facts which
“shock the conscience,” or otherwise state a claim of a
violation of a federal right. As no viable federal claim
against the City and Mayor Jim Bouley is stated in the
complaint, the complaint should be dismissed as to those
defendants under 28 U.S.C. § 1915(e)(2).
C. Claims against State and Van Ostern
Booth has named the State of New Hampshire as a defendant
to his claims for injunctive relief. “A state’s immunity under
the Eleventh Amendment applies whether a private plaintiff’s
suit is for monetary damages or some other type of relief.” New
Hampshire v. Ramsey, 366 F.3d 1, 14 (1st Cir. 2004); see also
Ramos-Piñero, 453 F.3d at 55 (Eleventh Amendment barred claims
against Puerto Rico). Booth’s claims against the State are
barred by the Eleventh Amendment.
Booth also names Colin Van Ostern as a defendant. Van
Ostern was an Executive Counselor who no longer holds a state
office. Booth includes no allegations regarding Van Ostern’s
actions or involvement in the project at issue, which could give
rise to any claim upon which relief can be granted by this
court. Accordingly, the complaint should be dismissed to the
extent it names Van Ostern as a defendant.
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II. Motion for a Preliminary Injunction (Doc. No. 2)
Booth has moved for a preliminary injunction to stop the
construction of the roundabout. “‘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). “‘[T]he sine qua non of [the] four-
part inquiry is likelihood of success on the merits: if the
moving party cannot demonstrate that he is likely to succeed in
his quest, the remaining factors become matters of idle
curiosity.’” Sindicato Puertorriqueño de Trabajadores, SEIU
Local 1996 v. Fortuño, 699 F.3d 1, 10 (1st Cir. 2012) (per
curiam) (citation omitted).
For reasons stated above, Booth has failed to state a
viable claim upon which relief can be granted, and has therefore
failed to demonstrate a likelihood of success on the merits on
the claims asserted in this matter. Accordingly, Booth’s motion
for a preliminary injunction (Doc. No. 2) should be denied.
Conclusion
For the foregoing reasons, the district judge should
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dismiss this action in its entirety, pursuant to 28 U.S.C.
§ 1915(e)(2), 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
May 16, 2017
cc: Christopher Booth, pro se
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