Veale v. U.S.A.

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[NOT FOR PUBLICATION]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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