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USCA1 Opinion
May 6, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2401
SCOTT W. VEALE AND DAVID T. VEALE,
Plaintiffs, Appellants,
v.
TOWN OF MARLBOROUGH, N.H.,
Defendant, Appellee.
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No. 92-2402
SCOTT W. VEALE AND DAVID T. VEALE,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA, ET AL.,
Defendants, Appellees.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Cyr, Circuit Judges.
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Scott W. Veale and David T. Veale on brief pro se.
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Per Curiam. Appellants, Scott W. and David T.
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Veale, appeal the dismissal of complaints they filed in two
separate actions in the district court. Appellants based
their complaints on 42 U.S.C. 1983. These cases concern a
long-running dispute as to whether appellants are the owners
of real property located in New Hampshire. The actions were
consolidated below and have been consolidated for purposes of
appeal. In affirming the judgments of the district court, we
will discuss the merits of each action in turn.1
I. Appeal No. 92-2402
I. Appeal No. 92-2402
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A. The Complaint.
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In the complaint filed in this action, appellants
named as defendants Charles Eggert, a private citizen and
attorney, the State of New Hampshire and the United States
government.
Count I concerns actions taken by Eggert in 1984
relating to certain parcels of real estate in which
appellants claim an interest. Appellants aver that their
parents had conveyed these properties to them in 1984 through
deeds prepared by Eggert. Appellants then allege that
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1. The district court dismissed the complaints before
defendants were served with process. Because appellants were
proceeding in forma pauperis this implicates the concerns of
Neitzke v. Williams, 490 U.S. 319 (1989), that such
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complaints should not be dismissed sua sponte without
adequate notice to plaintiffs and an opportunity to cure the
complaint's deficiencies. However, in this case, the matters
were referred first to a magistrate judge who filed reports
and recommendations noting the deficiencies. Appellants then
responded by filing objections which explained in more detail
their allegations. Only after the objections were filed did
the district court dismiss the complaints. This is
sufficient under Neitzke. See Purvis v. Ponte, 929 F.2d 822,
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826-27 (1st Cir. 1991) (per curiam).
Eggert, who represented appellants' parents in bankruptcy
proceedings apparently initiated in 1983, modified certain
purchase and sale agreements and filed pleadings in the
bankruptcy court in an effort to deprive appellants of their
interests in the parcels of land.
In Count II, appellants attack the action of the
bankruptcy court in approving the sale of two of the pieces
of land in which appellants claimed an interest. From the
papers attached to the complaint, it appears that the
bankruptcy court held that appellants had not acquired any
rights under the deeds allegedly prepared by Eggert.
Appellants assert that the bankruptcy court acted outside its
jurisdiction and precluded the resolution of the underlying
dispute concerning title to the land in question by approving
the sale. As a result, appellants allege that they were
deprived of their property without due process of law.
Count III relates to an action initiated by
appellants in 1986 in a New Hampshire superior court. In
this state case, appellants sought to recover the parcels of
land that had been sold upon the approval of the bankruptcy
court. According to the order attached to appellants'
complaint, the state court found that the determination of
the bankruptcy court that appellants had acquired no interest
in the property precluded appellants from having standing to
assert any claims to the real estate. Appellants allege that
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the superior court violated their rights under the Fourteenth
Amendment.
Count IV raises similar arguments. In 1987, a
state action was commenced by private individuals to enjoin
appellants from cutting wood on property owned by these
individuals. Apparently, appellants again attempted to
assert their ownership of the property in question based upon
the deeds described in Count I. The state court relied on
the order of the bankruptcy court to hold that the issue had
been decided adversely to appellants. The action by the
state court, according to appellants, deprived them of their
property without due process of law in violation of the
Fourteenth Amendment.
Finally, in Count V, appellants allege that all
three defendants "acted in concert with each other to deprive
plaintiffs of all of the property and homestead interests . .
. without the due process of law . . . in violation of . . .
the Fourteenth Amendment to the United States Constitution."
B. Discussion.
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Appellants' complaint fails for several reasons.
First, we note that because 1983 applies only to actions
taken under color of state law, the United States and the
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bankruptcy court obviously are not proper defendants. In any
event, appellants already have received review of the orders
of the bankruptcy court. They state that they pursued an
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appeal to the district court in September 1984. See 28
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U.S.C. 158(a). The decision of the district court is then
reviewable in this court under 158(d). Again, appellants
indicate that they sought such review.
Appellants' claims against the state of New
Hampshire concern the actions taken by the state court. As
such, they are governed by Rooker v. Fidelity Trust Co., 263
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U.S. 413 (1923). In Rooker, the Supreme Court held that it
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was the only federal court which could entertain a proceeding
to "reverse or modify" a state court judgment. Id. at 416.
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Thus, this court has no jurisdiction to review the state
court proceedings about which appellants complain.
Finally, appellants cannot sue Eggert, a private
attorney, under 1983. "It is black-letter law that a
showing of interference with a constitutionally-protected
right by someone acting under color of state law is a
prerequisite to a 1983 action." Malachowski v. City of
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Keene, 787 F.2d 704, 710 (1st Cir.) (per curiam) (private
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attorney, sued for actions taken as a court-appointed
counsel, is not acting under color of state law), cert.
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denied, 479 U.S. 828 (1986). Appellants' assertion in Count
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V that Eggert acted "in concert" with the two other
defendants is insufficient to meet this requirement.
"Although it is true that private parties jointly
engaged with state or local officials in prohibited conduct
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can be said to act under color of state law . . . general
allegations of cooperation between private individuals and .
. . government agencies" are not enough to state a 1983
action. Glaros v. Perse, 628 F.2d 679, 685 (1st Cir. 1980)
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(citation omitted). The nature of the relationship and the
factual basis of the alleged conspiracy must be "pled in some
detail." Id. No such showing has been made in this case.
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II. Appeal No. 92-2401
II. Appeal No. 92-2401
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A. The Complaint.
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The complaint in this appeal lists only the town of
Marlborough, New Hampshire, as defendant. However, in the
body of the 60-paragraph, 13-count complaint, appellants name
other defendants. Count I lays out the background. It
states that in November 1980, appellants discovered that the
town's tax maps were drawn in such a way so as to deprive
them of certain real estate they allegedly owned. As a
result of their discovery, appellants claim that the town
developed a bias against them and prohibited them from having
the tax maps corrected so that title to the real estate could
be resolved. The rest of the complaint provides more detail
concerning the town's attempts to "hinder, oppress, threaten
and intimidate" appellants in their efforts. The town's
actions include the following:
(a). In April 1981, appellants claim that a police
officer sat and watched while appellants were threatened and
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assaulted by certain residents of Marlborough. Appellants
sought relief by going to the police station where the police
again ignored their request for assistance. Also, appellant
Scott Veale claims that the police chief "arrested" him for
fifteen minutes after which the police chief ordered
appellants to leave town. (Count II).
(b). In November 1982, appellants state that the
town selectmen denied them a building permit which would have
allowed them to place their mobile home on land in
Marlborough. Appellants claim that they were denied the
permit even though the zoning laws permitted such action.
Appellants suggest that the town's actions were biased and
based on a dispute between appellants and other private
individuals concerning title to the land. (Count III).
(c). In October 1984, appellants state that they
were charged with violating the town's zoning laws based on
the presence of the mobile home on land in Marlborough.
Appellants state that these charges ultimately were dropped.
(Count IV). Also in 1984, appellants claim that a
Marlborough dog officer "kidnapped" one of appellants' dogs
allegedly on the ground that neighbors had complained about
violations of the leash law. Appellants aver that they never
were able to retrieve the dog. (Count V).
(d). In May 1985, appellants allege that they were
arrested for cutting trees and removing wood from land which
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they supposedly owned but which the 1980 tax maps indicated
belonged to others. Appellants claim that the wood they had
cut was confiscated, taken to a sawmill and later sold
without appellants' knowledge. Appellants also claim that
they were forced to plead guilty to these charges and, thus,
were denied their right to a fair trial by a jury.
Additionally, they claim that a public defender told them to
raise, as a defense, the dispute concerning who had title to
the real estate in question. However, the state court
refused to consider the property issue and, in an alleged
abuse of discretion, found appellants guilty. (Count VI).
(e). Appellants claim that in February 1986, the
town removed appellants' dump truck from the parking lot of
the town library. A Marlborough police officer then
allegedly arrested appellant Scott Veale for theft of an
overdue library book. Scott Veale later was found not
guilty. (Count VII). Also in February 1986, appellants
claim that the town refused to let them register their motor
vehicles or register to vote as residents of the town.
Appellants state that they were forced to obtain a court
order directing the town to provide appellants with the above
relief. (Count VIII).
Later, in April 1986, appellants allegedly were
arrested for threatening to shoot the tires on a tow truck
the police department stated it would use to remove one of
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appellants' vehicles from the land on which it was parked.
Even though appellants apparently were found not guilty after
trial, they charge that they had spent five days in jail for
contempt. Appellants claim that the contempt order was
improperly based on their request for a continuance so that
they could obtain court-appointed counsel. (Count IX).
Finally, in May 1986, appellants charge that they were
arrested for littering during their attempt to relocate their
mobile home. As a result, appellants claim, their mobile
home was impounded and personal property belonging to
appellants was destroyed. At trial, appellants state that
they were found not guilty. (Count X).
(f). In July 1989, appellants again requested a
building permit from the town selectmen so that they could
locate their mobile home on land in Marlborough. According
to appellants, they were told that the zoning laws had
changed after 1986 and mobile homes were no longer allowed in
Marlborough. Appellants, believing they possessed a "pre-
existing non-conforming use," moved their mobile home back to
Marlborough in November 1989.
Two days later, appellants state that they were
charged with violations of the town's zoning laws. The
mobile home was seized and subsequently sold at a public
auction. They claim that they were not provided with
adequate notice of the seizure. (Count XI). Similarly, in
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1990, appellants were charged with zoning violations after
moving their camper onto property in Marlborough. They claim
that they were ordered to remove the camper without proper
notice and a sufficient hearing. At a preliminary hearing,
appellants attempted to raise their claim that they owned the
land in question but, they assert, were denied the
opportunity to do so. (Count XII).
The last count recites that the town, in November
1990, again refused to allow appellants to register their
motor vehicles and refused to let appellants register to
vote. Accordingly, appellants filed suit in federal district
court, and, after a preliminary hearing, allegedly obtained
an order directing the town to allow appellants to declare
Marlborough as their residence. Appellants charge that the
town still has not let them register their motor vehicles and
pistols. (Count XIII).
Appellants aver that the above actions violated
their Fourteenth Amendment equal protection and due process
rights, their Fourth Amendment rights to be free from
unlawful arrest and their Fifteenth Amendment rights to vote.
B. Discussion.
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In their brief, appellants identify only one issue
for appeal: whether the town of Marlborough deprived them of
their property rights without due process of law in 1986 and
1989 when it denied appellants' applications for permits to
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place their mobile home on land in Marlborough.2
Specifically, appellants claim that they were denied the
right to a hearing on the underlying dispute concerning
whether they actually owned the land upon which they wished
to park their mobile home and other vehicles. This dispute
essentially concerns zoning decisions made by the town and
its board of selectmen. As such, it fails.
"[F]ederal courts do not sit as a super zoning
board or a zoning board of appeals." Raskiewicz v. Town of
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New Boston, 754 F.2d 38, 44 (1st Cir.), cert. denied, 474
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U.S. 845 (1985). In the absence of a "fundamental procedural
irregularity [or] racial animus," a conventional zoning
dispute does not implicate constitutional concerns. Creative
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Environments, Inc. v. Estabrook, 680 F.2d 822, 833 (1st
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Cir.), cert. denied, 459 U.S. 989 (1982); Chongris v. Bd. of
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Appeals of Town of Andover, 811 F.2d 36, 41-42 (1st Cir.),
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cert. denied, 483 U.S. 1021 (1987). Rather, such disputes
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are primarily of concern only to the state. Creative
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Environments, 680 F.2d at 833.
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Appellants' allegation that the board of selectmen
erred in applying the zoning law because of their incorrect
assumption that appellants did not own the property in
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2. Appellants have not briefed any of the other claims
asserted below. Thus, they are waived. See Gaudreault v.
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Municipality of Salem, 923 F.2d 203, 205 n.1 (1st Cir. 1990),
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cert. denied, 111 S. Ct. 2266 (1991).
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question is insufficient to state a 1983 claim. Indeed,
"even abridgements of state law committed in bad faith do not
necessarily amount to unconstitutional deprivations of due
process." Chongris, 811 F.2d at 43. See also Chiplin
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Enterprises, Inc. v. City of Lebanon, 712 F.2d 1524, 1528
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(1st Cir. 1983) (outright violation in denying a license does
not automatically raise a due process claim); Creative
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Environments, 680 F.2d at 833.
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Further, chapter 677 of the New Hampshire Revised
Statutes provides for rehearings of local zoning decisions
and appeals of such decisions to the New Hampshire superior
courts. See N.H. Rev. Stat. Ann. 677:2, 677:3, 677:4
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(1986 and Supp. 1991). We have held that "where . . . the
state offers a panoply of administrative and judicial
remedies, litigants may not ordinarily obtain federal court
review of local zoning and planning disputes by means of 42
U.S.C. 1983." Raskiewicz, 754 F.2d at 44; see also
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Chongris, 811 F.2d at 41.
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Although appellants aver in their brief on appeal
that they were denied such procedures, this claim is belied
by a document filed in the district court which lists at
least fifteen cases concerning appellants and the town of
Marlborough.3 Indeed, in a 1990 zoning action, the town
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3. This list -- attached to appellants' objections to the
report and recommendation of the magistrate judge in the
companion case -- includes over fifty cases to which
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filed a motion to amend to add a request that the superior
court specifically consider the question of property
ownership. This was done in response to appellants'
allegation in their answer filed in this zoning action that
they had been denied a forum in which to litigate this issue.
In the face of such evidence, it is plain that appellants
have had more than a sufficient opportunity to have the state
and federal courts address their claims.
Based upon the foregoing, we affirm the judgments
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of the district court in both appeals. Accordingly,
appellants' motions for oral argument and expedited
consideration are denied.
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appellants were parties spanning the years 1982 to 1992.
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Document Info
Docket Number： 92-2401
Filed Date： 5/6/1993
Precedential Status： Precedential
Modified Date： 9/21/2015