Strahan v. Kelly et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Maximus Strahan
v. Civil No. 17-cv-163-JL
Durham Police Officer Rene Kelley,
Durham Police Officer David Skelly,
Lee Police Officer Donald Laliberte,
Durham Police Department, and
Durham Police Officer Johnathan Lavoie
REPORT AND RECOMMENDATION
Before the court for preliminary review, pursuant to 28
U.S.C. § 1915(e)(2) and LR 4.3(d)(2), is plaintiff’s “Amended
Complaint” (Doc. No. 16). The standard applied in this
preliminary review is set forth in the May 2, 2017 Order (Doc.
No. 5).
Defendants Judith Mann, Katelyn Smith, and Frederick Slama
are private citizens who are alleged to have reported traffic
offenses, involving plaintiff, to the Lee Police Department
(“LPD”) and/or the Durham Police Department (“DPD”). Plaintiff
asserts that Slama, Mann, and Smith acted “in concert” with LPD
or DPD officers to violate his federal constitutional rights.
The pertinent provisions of the Bill of Rights do not
shield any individual from purely private misconduct. See Blum
v. Yaretsky, 457 U.S. 991, 1004 (1982) (Fourteenth Amendment
“‘erects no shield against merely private conduct, however
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discriminatory or wrongful’” (citation omitted)). “A private
actor’s conduct can be fairly attributable to the State if the
facts and circumstances of the case satisfy one of three tests:
the public function test, the state compulsion test, or the
joint action/nexus test.” Quiñones v. P.R. Elec. Power Auth.,
199 F. Supp. 3d 474, 491 (D.P.R. 2016) (citing Alberto San, Inc.
v. Consejo de Titulares del Condominio San Alberto, 522 F.3d 1,
4 (1st Cir. 2008)).
Alleging that Mann, Smith, and Slama acted in concert with
police officers, plaintiff seeks to invoke the joint
action/nexus test of state action. The remaining tests are not
applicable under the circumstances.
Stripped of the conclusory accusations of joint action, the
Amended Complaint (Doc. No. 16) asserts that the private
citizens named as defendants provided false, incriminating
information to the LPD or DPD; that each of them had an
independent motive for doing so; and that the LPD or DPD
followed up by obtaining a warrant and/or arresting plaintiff,
and by filing charges. Such allegations are insufficient to
state claims against private parties under 42 U.S.C. § 1983.
See Gibson v. Regions Fin. Corp., 557 F.3d 842, 846 (8th Cir.
2009) (“mere furnishing of information to a law enforcement
officer, even if the information is false, does not constitute
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joint activity with state officials”); Broderick v. Talbot, No.
CIV.A. 09-11511-DJC, 2012 WL 4321355, at *8, 2012 U.S. Dist.
LEXIS 134341, at *24 (D. Mass. Sep. 20, 2012) (“swearing out a
criminal complaint which forms the basis of criminal action or
arrest” does not “‘convert a private party’s acts into state
action’” (citation omitted)). Accordingly, plaintiff’s claims
in the Amended Complaint (Doc. No. 16) against Mann, Smith, and
Slama should be dismissed, and those private party defendants
should be dropped from the 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. Failure to file specific written objections to the
Report and Recommendation 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
June 14, 2017
cc: Richard Maximus Strahan, pro se
Corey M. Belobrow, Esq.
J. Joseph McKittrick, Esq.
Eric Alexander Maher, Esq.
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