Bryan v. Merrimack Police Department et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Naseef Bryan
v. Civ. No. 24-cv-150-LM-AJ
Merrimack Police Department
Brian Masker
REPORT AND RECOMMENDEDATION
Pro se plaintiff Naseef Bryan, appearing in forma pauperis,
filed a complaint (Doc. No. 1) against the Merrimack, New
Hampshire, Police Department (“MPD”) and MPD Officer Brian
Masker, relating to his arrest in May 2019. The complaint if
before the undersigned Magistrate Judge for preliminary review,
pursuant to LR 4.3(d)(2) and 28 U.S.C. § 1915(e)(2). As
explained more fully below this case should be dismissed because
it was filed after the applicable statute of limitations had
expired.
Standard of Review
The magistrate judge conducts a preliminary review of
pleadings, like Mr. Bryan’s, that are filed in forma pauperis.
See LR 4.3(d). The magistrate judge may recommend to the
district judge that one or more 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
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claim upon which relief may be granted. See 28 U.S.C. §
1915(e)(2); LR 4.3(d). 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.’” 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). Finally,
dismissing an action based on an affirmative defense upon
preliminary review is permissible 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).
Factual Background1
According to a criminal complaint attached to his complaint
in this case, Mr. Bryan was arrested by Officer Masker for
criminal threatening on May 21, 2019. He was accused of
pointing a gun at another motorist in a “road rage” incident in
1 The court recites the facts as set forth in Mr. Bryan’s
complaint and affidavit, as well as documents appended to his
complaint, including a police report and grand jury return.
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Merrimack. Compl. (Doc. No. 1) at 11-13. A grand jury,
however, returned a no true bill on July 16, 2019, effectively
ending the criminal case. Id. at 15.
Mr. Bryan alleges that he was arrested without sufficient
evidence to support the charges against him, his firearm was
illegally seized and that he was defamed by the commencement of
criminal charges. The court construes the arrest and firearm
seizure claims to be brought pursuant to 42 U.S.C. § 1983 and
the defamation claim pursuant to New Hampshire common law.
Discussion
It is clear from the facts in the complaint and the
attachments Mr. Bryan has filed that his claims are barred by
the applicable statutes of limitations. Section 1983 cases
borrow the relevant limitations period applied in personal
injury cases in the state where the claim arose. Rose v.
Governor, State of New Hampshire, No. 19-CV-311-LM, 2019 WL
3938081, at *2 (D.N.H. July 12, 2019), report and recommendation
adopted sub nom. Rose v. NH, No. 19-CV-311-LM, 2019 WL 3935365
(D.N.H. Aug. 19, 2019), aff'd sub nom. Rose v. Sununu, No. 19-
2039, 2020 WL 6472396 (1st Cir. June 8, 2020).
The statute of limitations for § 1983 claims arising out of
events occurring in New Hampshire is three years. See Gorelik v.
Costin, 605 F.3d 118, 121 (1st Cir. 2010); see also N.H. Rev.
Stat. Ann. § 508:4. Mr. Bryan was arrested in May 2019, roughly
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five years before commencing this lawsuit. The three-year
limitations period for filing suit concerning that occurrence
expired no later than July 16, 2022, three years after the grand
jury no true bill return. Similarly, New Hampshire’s three-year
statute of limitations for libel and slander cases, N.H. Rev.
Stat. Ann. § 508:4, II, expired long before Mr. Bryan filed this
action. Nothing in the complaint suggests that the limitations
period should be tolled to allow the court to deem it timely
filed. Accordingly, the statute of limitations bars Mr. Bryan’s
claims.
Conclusion
For the foregoing reasons, the district judge should
dismiss this case. 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. Only those issues raised in
the objection(s) to this Report and Recommendation are subject
to review in the district court. See Sch. Union No. 37 v. United
Nat'l Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010). Any issues
not preserved by such objection(s) are precluded on appeal. See
id. Failure to file any objections within the specified time
waives the right to appeal the district court's Order. See
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Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
_____________________________
Andrea K. Johnstone
United States Magistrate Judge
June 12, 2024
cc: Naseef Bryan, Jr., pro se
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