Brodeur v. MA, State of et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Christopher Brodeur
v. Civil No. 17-cv-445-PB
State of Massachusetts; Governor
Charlie Baker (and his staff); Senator
Jeanne Shaheen (and her staff); Cara Wry;
Mass. RMV; and Police Officers FNU Moffa
and John Does 1 & 2
REPORT AND RECOMMENDATION
Pro se plaintiff, Christopher Brodeur, has filed a document
that he labels as a “R.I.C.O. Complaint” and as an “Emergency
Pleading” (Doc. No. 1), which the court has docketed as a
complaint. The complaint is here for review pursuant to 28
U.S.C. § 1915(e)(2).1 Brodeur’s request for preliminary
injunctive relief, set forth in the complaint, was the subject
of the October 6, 2017 Report and Recommendation (“October 6
R&R”) (Doc. No. 4), that has been withdrawn by an Order issued
this date. Brodeur’s request for a preliminary injunction is
also addressed in this Report and Recommendation (“R&R”).
1Plaintiff has not yet paid the filing fee. The court has
directed plaintiff by November 27, 2017 either to pay the filing
fee or to file supplemental information regarding his regular
monthly expenses if he seeks leave to proceed in forma pauperis.
See Oct. 23, 2017 Order; Oct. 5, 2017 Order; Sept. 27, 2017
Order (Doc. No. 3).
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Background
The following is a summary of pertinent facts stated in the
original complaint (Doc. No. 1), as clarified by Brodeur in his
“Rebuttal” (Doc. No. 9). Brodeur asserts he was issued a
speeding ticket in Massachusetts in the 1980s, which he promptly
paid. See Doc. No. 1; Doc. No. 9, at 1. Brodeur further
asserts that, around the same time he was issued the ticket he
paid, he ran out of gas on Interstate 495. Doc. No. 1; Doc. No.
9, at 1. A state trooper took his driver’s license, ran a
check, and then arrested Brodeur for driving with a suspended
license. See Doc. No. 9, at 1. A month later, in a hearing on
the suspended license charge, the state produced Massachusetts
Registry of Motor Vehicle (“RMV”) records indicating that the
RMV had made a clerical error, and that Brodeur had paid the
underlying speeding ticket on time. See id. Brodeur alleges
that the Massachusetts court in that proceeding fined him
“illegally,” and excessively, given how much it had cost Brodeur
to get his car back after that “false” arrest. Id.
Brodeur asserts that he was falsely arrested, without
probable cause, more than once in Massachusetts in the late
1980s. In the 1990s, he alleges, he was arrested without
probable cause, after a police officer in Massachusetts mailed
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an arrest warrant to him. See Doc. No. 1. At a hearing
relating to that arrest warrant, a court in Massachusetts told
Brodeur that the warrant was invalid, and released him. See id.
Brodeur has listed Officer Moffa and two John Doe officers as
defendants, in connection with those Massachusetts arrests
and/or traffic violations. See Doc. No. 1.
Brodeur has not had a driver’s license for a number of
years. See generally Doc. No. 1. Brodeur alleges that in 2015,
when he went to the New Hampshire Division of Motor Vehicles to
apply for a license, he was told he needed to pay fines and fees
relating to four unpaid Massachusetts tickets, dating from 1989,
before a New Hampshire license could be issued. See id.
Brodeur asserts that the four tickets are “bogus,” and that he
was not previously aware that they existed. Doc. No. 1.
Brodeur asserts that from 2015-2017 he made a number of
calls to government offices to obtain advice and assistance
relating to those tickets. He was told by “everyone” he
contacted at the Massachusetts RMV, at Massachusetts Governor
Charlie Baker’s office, and in the Massachusetts courts, that he
could not contest the four 1989 tickets in question.
Brodeur asserts that his phone calls to U.S. Senator Jeanne
Shaheen’s office in New Hampshire were similarly unavailing. A
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number of staffers, including Cara Wry, repeatedly hung up on
Brodeur. See Doc. No. 9, at 4. Wry falsely told Brodeur that
it is not a federal issue when the federal rights of a New
Hampshire resident are violated. See Doc. No. 1.
Brodeur further asserts in conclusory terms that he was
subjected to “false arrests” twice recently, and he asserts
those arrests “couldn’t have happened but for the illegal
actions of the defendants.” Doc. No. 9, at 3. He asserts he
needs a driver’s license to attend hearings in “other towns” to
challenge those false arrests. See id. at 5. In addition, he
asserts that he recently received notice from the Massachusetts
RMV that there are additional unpaid fines and fees pending
against him in Massachusetts, and that his driver’s license is
subject to suspension in January 2018. See id.
Brodeur claims that the police and courts in Massachusetts
in the 1980s and 1990s engaged in tortious, criminal, and
unconstitutional acts relating to false arrests, convictions,
and errors in his records. He further alleges that government
offices he contacted beginning in 2015 engaged in fraud and
theft. Brodeur cites the Racketeer Influenced Corrupt
Organizations Act (“RICO”) and the False Claims Act, in
asserting that taxpayers pay the salary of those government
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employees who did not do their jobs and hung up on his calls.
Brodeur asserts that police officers and state courts in
Massachusetts, and government employees in Massachusetts and in
Senator Shaheen’s office failed to help him and violated his
rights. Brodeur characterizes defendants’ conduct as tortious,
criminal, unconstitutional, derelict, and lazy. Brodeur seeks
damages, injunctive relief, and a writ of mandamus.
Discussion
I. Preliminary Review
A. Standard
The federal law authorizing the filing of lawsuits by
plaintiffs proceeding in forma pauperis, 28 U.S.C. § 1915(e)(2),
provides for sua sponte review of their claims, as follows:
“Notwithstanding any filing fee . . . that may have been paid,
the court shall dismiss the case at any time if the court
determines that . . . (B) the action . . . (i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who
is immune from such relief.” Id. Pursuant to that authority,
this court may dismiss one or more claims, where the plaintiff
has not paid the filing fee, if the court lacks jurisdiction,
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the action is frivolous, a defendant is immune from the relief
sought, or the complaint fails to state a claim upon which
relief may be granted. See id. The complaint must contain
“sufficient factual matter, accepted as true, to ‘state a claim
to relief’” that is plausible on its face. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). In
conducting this preliminary review, the court construes pro se
complaints liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam).
B. Eleventh Amendment
Brodeur names a state, Massachusetts, and the Massachusetts
RMV as defendants. Brodeur’s claims against those entities are
barred by the Eleventh Amendment, and should be dismissed. See
Town of Barnstable v. O’Connor, 786 F.3d 130, 138 (1st Cir.
2015); New Hampshire v. Ramsey, 366 F.3d 1, 14 (1st Cir. 2004).
Those defendants should be dropped from this case.
C. Torts
Brodeur asserts that defendants engaged in conduct that
violated state or federal criminal laws, and that constituted
fraud and other torts. Brodeur’s fraud and unjust enrichment
allegations are generally non-specific, including his
allegations that federal employees failed to “do their jobs”
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while still collecting their paychecks. Without more, Brodeur’s
allegations of defendants failing to do jobs they are paid to
do, and defendant Wry’s statement characterizing Brodeur’s
concerns as a state government issue and not as a federal issue,
do not give rise to any claim upon which relief can be granted.
Plaintiff has failed to allege any acts of fraud causing him
injury, with the specificity required by Fed. R. Civ. P. 9.
Stripped of legal conclusions about unjust enrichment, fraud,
negligence, theft, and malpractice, the complaint fails to state
a claim relating to Wry’s statements.
D. Crimes
In general, there is no federal right to have criminal
wrongdoers prosecuted. See Nieves-Ramos v. Gonzalez-De-
Rodriguez, 737 F. Supp. 727, 728 (D.P.R. 1990) (citing Linda R.
S. v. Richard D., 410 U.S. 614, 619 (1973) (“a private citizen
lacks a judicially cognizable interest in the prosecution or
nonprosecution of another”)). Accordingly, the district judge
should dismiss Brodeur’s claims, asserting a right to relief
based on defendants’ alleged criminal conduct.
E. RICO
“To state a RICO claim, plaintiffs must allege four
elements: ‘(1) conduct, (2) of an enterprise, (3) through a
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pattern, (4) of racketeering activity.’” Giuliano v. Fulton,
399 F.3d 381, 386 (1st Cir. 2005). Cf. 18 U.S.C. § 1961(1)
(racketeering includes, among other things, federal mail fraud;
federal wire fraud; and felony acts of kidnapping, robbery,
bribery, or extortion, chargeable under state law). “[T]he
civil damages provision of the RICO statute . . . allows ‘[a]ny
person injured in his business or property by reason of a [RICO
violation]’ to recover damages. The term ‘by reason of’ refers
to both but-for causation and proximate causation.” Painters &
Allied Trades Dist. Council 82 Health Care Fund v. Forest Labs.,
Inc. (In re Celexa & Lexapro Mktg. & Sales Practices Litig.),
315 F.R.D. 116, 123-124 (D. Mass. 2016) (citations omitted).
RICO is subject to a four-year statute of limitations, which
begins to run when the plaintiff knew or should have known of
his injury. Lares Grp., II v. Tobin, 221 F.3d 41, 45 (1st Cir.
2000); P.R. Med. Emergency Grp., Inc. v. Iglesia Episcopal
Puertorriqueña, Inc., 118 F. Supp. 3d 447, 459 (D.P.R. 2015).
Plaintiff’s RICO claims arising from arrests and
proceedings involving Brodeur in the 1980s and 1990s are barred
by the statute of limitations. Furthermore, when stripped of
speculative legal conclusions about conspiracy, fraud, and
“kidnapping,” the complaint fails to state a claim that two or
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more predicate acts of racketeering, conducted by an enterprise,
proximately caused injury to Brodeur’s business or property
interests. Because the Complaint fails to state a claim under
RICO, the RICO claims should be dismissed.
F. False Claims Act
The False Claims Act (“FCA”) creates a cause of action for
the United States to recover economic losses incurred from
fraudulent claims for payment. See 31 U.S.C § 3729. Under the
“qui tam” provision, private “relators” who have evidence of
fraud, may assert the government’s claim on its behalf. See id.
§ 3730(b). Plaintiff is proceeding pro se in this action; as
such, he is prohibited from bringing an FCA complaint. See
United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89,
93 (2d Cir. 2008) (“Because relators lack a personal interest in
False Claims Act qui tam actions . . . they are not entitled to
proceed pro se.”). Accordingly, the district judge should
dismiss the FCA claims asserted in this action.
G. Mandamus
A petition for a writ of mandamus is pursued via the
Mandamus and Venue Act, 28 U.S.C. § 1361 (“MVA”), which provides
that “the district courts shall have original jurisdiction of
any action in the nature of mandamus to compel an officer or
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employee of the United States or any agency thereof to perform a
duty owed to the plaintiff.” “The common-law writ of mandamus,
as codified in 28 U.S.C. § 1361, is intended to provide a remedy
for a plaintiff only if he has exhausted all other avenues of
relief and only if the defendant owes him a clear
nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616,
(1984. Accord In re City of Fall River, 470 F.3d 30, 32 (1st
Cir. 2006). As to the federal employees named as defendants –
Senator Jeanne Shaheen’s staff in New Hampshire – plaintiff has
pointed to no nondiscretionary duties that those individuals
failed to perform. Fielding all constituent phone calls without
hanging up, providing an opinion a constituent wants to hear
about the federal or state nature of a particular concern, and
helping a constituent on issues involving the state courts and
state motor vehicle regulations are not nondiscretionary duties
that federal law requires those individuals to perform.
Accordingly, the district judge should dismiss any mandamus
claims targeting the conduct of the state or federal agents
named as defendants.
H. Claims Relating to Massachusetts Tickets and Arrests
Brodeur asserts that he has been told by unnamed persons in
the Massachusetts courts, the Massachusetts Governor’s office,
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and the Massachusetts RMV that he cannot challenge the validity
of speeding tickets that must be paid before he can receive a
New Hampshire driver’s license. Brodeur claims that the lack of
a remedy in Massachusetts for what he considers to be bogus
tickets violates his Fourteenth Amendment right to due process.
In addition, Brodeur’s pleadings assert claims of violations of
his federal civil rights and torts relating to false arrests and
state proceedings occurring decades ago in Massachusetts.
The facts asserted in the complaint indicate that this
court lacks personal jurisdiction over the Massachusetts
officers or officials named as defendants to those claims, as
all of their alleged unconstitutional conduct occurred in
Massachusetts. See Hull v. Bor. of Pt. Pleasant Beach, No. 10-
cv-356-PB, 2011 DNH 42, 2011 WL 1033716, at *2, 2011 U.S. Dist.
LEXIS 29644, at *4-*6 (D.N.H. Mar. 22, 2011) (New Hampshire
court lacked personal jurisdiction over local officials in New
Jersey who caused bogus complaints to be lodged in New Jersey
and caused plaintiff’s driver’s license to be suspended in New
Jersey, notwithstanding their knowledge that New Hampshire would
refuse to renew plaintiff’s New Hampshire driver’s license
because of New Jersey license suspension, as “defendant’s
unconstitutional conduct occurred entirely in New Jersey,” and
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“[t]his is not the exceedingly rare case where a relatedness
claim can be established solely through the in-state ‘effects of
out-of-state conduct’” (citation omitted)). Cf. Trujillo v.
Williams, 465 F.3d 1210, 1217 (10th Cir. 2006) (“under [28
U.S.C.] § 1915, the district court may consider personal
jurisdiction . . . sua sponte ‘only when the defense is obvious
from the face of the complaint and no further factual record is
required to be developed,’” and dismissal is permitted only if
it is clear that plaintiff can allege “‘no set of facts’” to
support personal jurisdiction (citations omitted)).
Furthermore, the tort claims and federal constitutional claims
arising out of Brodeur’s arrests and court proceedings that
occurred in the 1980s and 1990s would be barred by the
applicable statute of limitations. See Nieves v. McSweeney, 241
F.3d 46, 51 (1st Cir. 2001). Accordingly, the district judge
should dismiss Brodeur’s claims related to the Massachusetts
tickets and to events that occurred in Massachusetts in the
1980s and 1990s, for lack of personal jurisdiction over the
defendants, and for failure to state a claim.
I. Conspiracy Claims
Although “pro se complaints are to be read generously,
allegations of conspiracy must nevertheless be supported by
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material facts, not merely conclusory statements.” Slotnick v.
Garfinkle, 632 F.2d 163, 165 (1st Cir. 1980) (per curiam)
(citation omitted); see also Iqbal, 556 U.S. at 678 (conclusory
nature of allegations not entitled to presumption of truth).
Stripped of the conclusory accusations of a conspiracy between
defendants in this case, Brodeur’s pleadings lack sufficient
allegations to state a plausible conspiracy claim. Accordingly,
the district judge should dismiss the conspiracy claims.
J. Remaining Claims
Brodeur further claims that defendant Cara Wry and other
unnamed government employees violated his rights under the Fifth
and First Amendments, and otherwise engaged in tortious or
illegal conduct, by hanging up on him. Brodeur’s allegations,
taken as true, may show unprofessional conduct on the part of
those individuals, but fail to give rise to any cognizable
claim.
Brodeur asserts in general terms that recently he has been
subjected to “false arrests” that are the subject of hearings in
other towns, and that the Massachusetts RMV has notified him
that his driver’s license is subject to suspension in January
2018. Those matters are alleged in a conclusory fashion, in a
manner that fails to state a claim upon which relief can be
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granted, when the legal conclusions are stripped away.
Accordingly, such claims should be dismissed.
II. Preliminary Injunctive Relief
Plaintiff requests a preliminary injunction in this action,
including an order directing the Commonwealth of Massachusetts
to void the allegedly unpaid 1989 tickets or to provide him with
“due process to debunk them,” Doc. No. 1; and directing New
Hampshire officials (who are not named as parties) to allow
Brodeur to “take the [driver’s license] test & get his license
while the allegedly fake 1989 tix (etc[.]) are resolved.” Doc.
No. 9, at 5.
“‘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). “Though each
factor is important . . . ‘[t]he sine qua non of this four-part
inquiry is likelihood of success on the merits.’” Sindicato
Puertorriqueño de Trabajadores, SEIU Local 1996 v. Fortuño, 699
F.3d 1, 10 (1st Cir. 2012) (per curiam) (citation omitted). “To
demonstrate likelihood of success on the merits, plaintiffs must
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show ‘more than mere possibility’ of success – rather, they must
establish a ‘strong likelihood’ that they will ultimately
prevail.” Id. (citation omitted). The burden of proof is on
the movant. See Esso Std. Oil Co. v. Monroig–Zayas, 445 F.3d
13, 18 (1st Cir. 2006).
For reasons stated in this Report and Recommendation,
Brodeur has failed to state a claim upon which relief can be
granted. Brodeur has thus failed to demonstrate a likelihood of
success on the merits of any claim in this case. Accordingly,
the district judge should deny Brodeur’s request for preliminary
injunctive relief.
Conclusion
For the foregoing reasons, the district judge should
dismiss this action, pursuant to 28 U.S.C. § 1915(e)(2), and
also deny the request for preliminary injunctive relief set
forth in the Complaint (Doc. No. 1). 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 objections within the specified time waives the right to
appeal the district court’s order. See Santos-Santos v. Torres-
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Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
October 26, 2017
cc: Christopher Brodeur, pro se
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