Michaud v. Nadeau ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1567
DAVID MICHAUD,
Plaintiff, Appellant,
v.
TINA NADEAU; MICHAEL MCQUADE; WAYNE PERREAULT; PETER K. ODOM;
SUSAN G. MORRELL; DIANE DUBAY; FRANK GAGNON; LINDA MICHAUD;
STEPHANIE NUTE; PETER FAUVER; BRUCE MOHL; EDWARD
FITZGERALD, III; DAVID FUNK; WARREN DOWALIBY; SANDRA
HODGE-FUNK; KEVIN SULLIVAN; DELLA ROLLINS; JAMES MCQUADE;
MARILYN ALLEN; RICHARD RENNER; DAVID H. BEDARD; FRED SERTA;
VICTORIA HEYL; SHAUNA MICHAUD; CHAD MICHAUD;
STRAFFORD COUNTY HOUSE OF CORRECTIONS;
ROCHESTER POLICE DEPARTMENT; AND CITY OF ROCHESTER,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell and Bownes, Senior Circuit Judges.
David Michaud on brief pro se.
Donald E. Gardner, and Devine, Millimet & Branch on brief
for defendants-appellees Michael McQuade, Wayne Perreault,
Rochester Police Department, and City of Rochester.
Robert L. Hermann, Jr. and McNeill & Taylor, P.A. on brief
for defendants-appellees Peter K. Odom, Susan G. Morrell, Diane
Dubay, David Funk, Warren Dowaliby, Sandra Hodge-Funk, Kevin
Sullivan, Della Rollins, James McQuade, Marilyn Allen, Richard
Renner, David H. Bedard, Fred Serta, Victoria Heyl, and
Strafford County House of Corrections.
February 28, 2001
Per Curiam. Pro se appellant David Michaud appeals
from the dismissal of his complaint asserting violations of
various criminal laws of the United States. In a report and
recommendation dated March 8, 2000, Magistrate Judge James
Muirhead recommended dismissal for failure to state a claim
for relief. See 28 U.S.C. § 1915A(a) & (b) (providing for
dismissal on preliminary review of prisoner complaints
against government officers or employees if the complaints
do not state a claim for relief). In an order dated March
20, 2000, District Judge Steven McAuliffe approved the
recommendation and dismissed the complaint.1 We affirm.
On appeal, Michaud argues that his complaint
adequately alleged a civil action under the Racketeering
Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C.
§ 1964(c). In his report, Magistrate Judge Muirhead
concluded that the complaint failed to allege facts
1
The district judge issued his order several days before
Michaud filed his objections to the magistrate judge's report
and recommendation. Because the record does not establish when
Michaud received the report and recommendation (the date that
would trigger the start of the filing period), we cannot
evaluate whether the objections were timely. Accordingly, we
give Michaud the benefit of the doubt, assume that he timely
filed objections to the report, and proceed to evaluate his
appellate claims.
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sufficient to show a "pattern of racketeering activity." We
agree, as is explained next.
Michaud contends that the complaint alleged acts
of mail fraud, extortion, and obstruction of justice. See
18 U.S.C. § 1961(1)(B) (defining "racketeering activity" to
include, in pertinent part, violations of 18 U.S.C. § 1341,
pertaining to mail fraud, §§ 1503, 1510, and 1511,
pertaining to certain obstructions of justice, and § 1951,
pertaining to extortion). But, even if we construe his
complaint in the most generous fashion possible, he has
alleged at best one predicate act of mail fraud (the
alteration of mail sent to his daughter) with the requisite
specificity. Id. (5) (defining "pattern of racketeering
activity" to require "at least two acts of racketeering
activity" within a designated time frame); Ahmed v.
Rosenblatt, 118 F.3d 886, 889 (1st Cir. 1997) (stating that
a RICO complaint alleging mail fraud must, in conformity
with Fed. R. Civ. P. 9(b), "state the time, place and
content of the alleged mail . . . communications
perpetrating that fraud"), cert. denied, 522 U.S. 1148
(1998); see also United States v. Martin, 694 F.2d 885, 889-
90 (1st Cir. 1982) (noting that § 1341 extends to persons
who "take or receive" things from the mail and affirming
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conviction of defendant who had intercepted and altered
mailings between insurance companies and purchasers pursuant
to scheme to defraud).
As for the other alleged acts of mail fraud, the
allegations in the complaint either lack the requisite
specificity, see Ahmed, supra, or describe unrelated conduct
that was unlikely to have continued for very long. See
Efron v. Embassy Suites (Puerto Rico), Inc., 223 F.3d 12, 15
(1st Cir. 2000) (indicating that RICO plaintiff must show
that the requisite racketeering acts are related and "amount
to or pose a threat of continued criminal activity") (citing
H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239
(1989)), pet. for cert. filed (Dec. 29, 2000) (No. 00-1069).
In addition, the complaint does not allege conduct by the
defendants that would be indictable under the relevant
extortion or obstruction of justice statutes. See Evans v.
United States, 504 U.S. 255, 268 (1992) (holding that a
violation under the "color of official right" portion of 18
U.S.C. § 1951 would require a showing "that a public
official has obtained a payment to which he was not
entitled, knowing that the payment was made in return for
official acts"); O'Malley v. New York City Transit
Authority, 896 F.2d 704, 708 (2d Cir. 1990) (rejecting RICO
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claim predicated on obstruction of justice under 18 U.S.C.
§ 1503 where alleged obstruction occurred in state and not
federal courts).2
Affirmed.
2The complaint also alleges obstruction of justice under 18
U.S.C. §§ 1510 and 1511, but fails to make any factual
allegation suggesting any conduct that would be indictable under
the plain language of the relevant statutes.
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