Perry v. New Hampshire Divisi

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1799
DAVID A. PERRY,
Plaintiff, Appellant,
v.
VIRGINIA C. BEECHER,
DIRECTOR OF THE NEW HAMPSHIRE DIVISION OF MOTOR VEHICLES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Torruella, Lynch and Lipez,
Circuit Judges.
David A. Perry on brief pro se.
Daniel J. Mullen, Associate Attorney General on brief for
appellee.
March 29, 2005
Per Curiam. Plaintiff-appellant David A. Perry has
appealed the district court's dismissal of his complaint. We can
affirm a district court's judgment on any ground supported by the
record. Campagna v. Massachusetts Dep't of Envtl. Prot., 334
F.3d 150, 155 (1st Cir. 2003). Upon our review, we conclude that
res judicata is an appropriate ground for dismissal.
Accordingly, we affirm.1
We reject Perry's contentions that there was no final
state court judgment on the merits and that he did not have a
full and fair opportunity to litigate his constitutional claims
in the state courts. Perry argues that the August 2003 state
trial court decision simply ruled that neither habeas nor
mandamus were proper forms for relief. However, the state court
described the legal standard it applied in testing the facts
alleged in the pleading and in finding dismissal appropriate,
i.e., where the plaintiff's allegations are not "reasonably
susceptible of a construction that would permit recovery" and
where "the facts as pled do not constitute a basis for legal
relief." We believe this description sufficiently evidences the
court's conclusion that Perry's constitutional claims provided no
basis for any type of legal
1
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83(1998) is not a bar to our disposition. See Penobscot Nation v.
Georgia-Pacific Corp., 254 F.3d 317, 324-25 (1st Cir. 2001)
(bypassing the question of subject matter jurisdiction to conclude
that relief was foreclosed on res judicata grounds).
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relief and not simply that they lacked a basis for habeas or
mandamus relief.
Moreover, Perry raised his complaint about the
decision's alleged inadequacy both on reconsideration before the
trial court and in what he termed a "Petition for Original
Jurisdiction" to the state supreme court. He also again
reiterated his constitutional claims and argued that, if neither
habeas nor mandamus relief were appropriate, the courts should
award any "alternative" form of relief. The trial court denied
reconsideration and the state supreme court, treating the
petition before it as an appeal, declined to hear the case.
These subsequent state court decisions reinforce our view that
the state courts have determined that Perry was not entitled to
any form of relief.
Just as importantly, however, Perry ignores the fact
that he had earlier pursued and lost a challenge to the two year
license suspension for his refusal of the breathalyzer test.
Perry challenged the factual finding that he had refused the
breathalyzer test. He lost that challenge both on an
administrative appeal and subsequently in the state superior
court, the effect of which was to uphold the resulting imposition
of the consecutive two year license suspension. The New
Hampshire Supreme Court declined to hear his appeal and Perry did
not seek certiorari to the United States Supreme Court. Perry
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does not contest the district court's description of New
Hampshire's application of res judicata as including "matters
that could have been litigated in an earlier action between the
same parties for the same cause of action" and there is nothing
to suggest that, simultaneously with his challenge to the factual
finding that he had refused the breathalyzer test, Perry could
not have also raised his claims as to the constitutionality of
the consecutive two year license suspension. Accordingly,
Perry's current claims are foreclosed by res judicata.2
The judgment of the district court dismissing the
complaint is affirmed.
2
Perry contends that the defendant-appellee's motion to
dismiss was tardily filed and, thus, the affirmative defense of res
judicata was waived. The irony is that Perry raises this
contention for the first time on appeal and seeks to excuse his own
forfeiture in order to assert this waiver bar against the
defendant-appellee. Perry proffers no justifiable ground for his
failure to allege untimeliness and waiver below. On plain error
review, we refuse Perry's request that we find waiver. Assuming
without deciding that the motion to dismiss was late, the district
court, by considering the motion to dismiss, at least implicitly
excused its alleged tardiness and we would not find an abuse of
discretion in its doing so.
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