Behre v. Thomas

• Decision Date: 17 July 1987
• Docket Number: Civ. No. 86-547-D.
• Court: U.S. District Court — District of New Hampshire
• Parties: Joseph BEHRE; Emmett Ronayne; Robert Gustafson; K.W. Thompson Tool Company, Inc. v. Lee THOMAS, Administrator; Michael Deland, Regional Administrator; Philip Andrew, Investigator; William Ruckelshaus, Former Administrator; Lester Sutton, Former Regional Administrator; Alvin Alm, Former Deputy Administrator [all of United States Environmental Protection Agency].

665 F. Supp. 89

Joseph BEHRE; Emmett Ronayne; Robert Gustafson; K.W. Thompson Tool Company, Inc. v. Lee THOMAS, Administrator; Michael Deland, Regional Administrator; Philip Andrew, Investigator; William Ruckelshaus, Former Administrator; Lester Sutton, Former Regional Administrator; Alvin Alm, Former Deputy Administrator all of United States Environmental Protection Agency.

Civ. No. 86-547-D.

United States District Court, D. New Hampshire.

July 17, 1987.

Cullen & Wall by John Wall, Boston, Mass., Shaheen, Cappiello, Stein & Gordon by Steven Gordon, Concord, N.H., for plaintiffs.

United States of America by Gordon W. Daiger, Sandra R. Ganus, Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for the United States et al.

Posternak, Blankstein & Lund by David J. Hatem, Boston, Mass., Dufresne-Henry, Inc. by Richard K. Allen, Manchester, N.H., for Dufresne-Henry, Inc. and Rushbrook.

Upton, Sanders & Smith by John F. Teague, Concord, N.H., for Eastern Analytical, Inc. and Brunkhorst.

State Attorney General's Office by Robert P. Cheney, Jr., Michael J. Walls, Geoffrey M. Huntington, Concord, N.H., for State of New Hampshire et al.

OPINION AND ORDER

DEVINE, Chief Judge.

In this action, plaintiffs Joseph Behre, Emmett Ronayne, Robert Gustafson, and K.W. Thompson Tool Company, Inc. ("KWT"), bring suit against six above-named present and/or former employees of the United States Environmental Protection Agency ("EPA") in their individual capacities seeking compensatory and punitive damages for defendants' alleged deprivation of plaintiffs' constitutional rights in violation of 42 U.S.C. §§ 1983 and 1985 and the United States Constitution.¹ This action originated in Strafford County (New Hampshire) Superior Court and was removed here by defendants pursuant to 28 U.S.C. § 1442(a)(1).² This matter is presently before the Court on defendants' motion to dismiss and plaintiffs' objection thereto.³

In considering a motion to dismiss, the Court follows the established requirement in ruling on such motion that "the material facts alleged in the complaint are to be construed in the light most favorable to the plaintiff and taken as admitted, with dismissal to be ordered only if the plaintiff is not entitled to relief under any set of facts he could prove." Chasan v. Village Dist. of Eastman, 572 F.Supp. 578, 579 (D.N.H.1983) (citations omitted), aff'd without opinion, 745 F.2d 43 (1st Cir.1984). In reviewing motions to dismiss, the Court's focus is limited to the allegations contained in the complaint itself. Litton Indus. v. Colon, 587 F.2d 70, 74 (1st Cir.1978). The standard for granting a motion to dismiss is not the likelihood of success on the merits, but is whether plaintiff is entitled to offer evidence to support his claim. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The relevant facts as alleged by plaintiffs in their amended complaint and the background of this litigation are as follows.⁴

KWT is a New Hampshire corporation with its principal place of business in Rochester New Hampshire. Firearms are KWT's principal product, specifically those types of weapons popular with target shooters and hunters. Metal casting and firearms manufacturing are carried out at the facility, which is on or near various unnamed ditches and streams which flow into the Cocheco River. In the course of its manufacturing, KWT apparently discharges various substances into these ditches and streams, which are regulated under both state and federal environmental laws.

Plaintiffs⁵ were the subjects of a criminal prosecution for violations of various federal environmental laws docketed in this court as Cr. Nos. 85-00008-01, -02, -03, and 04-L (indictment filed March 18, 1985). On July 1, 1985, pursuant to a plea agreement, KWT pled guilty to certain counts in exchange for the dismissal with prejudice of the remaining counts against KWT and all of the counts with respect to the corporate officers. KWT then filed an action in this court against all of the same defendants originally named herein based on their allegedly wrongful actions surrounding the criminal prosecution, docketed as Civ. No. 86-111-D (complaint filed March 10, 1986). However, all of the claims against the non-federal defendants were voluntarily dismissed from Civ. No. 86-111-D, and that case proceeded solely as a claim against the federal defendants pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671, et seq. By Order dated March 24, 1987, the Court granted the defendants' motion to dismiss, and Civ. No. 86-111-D was closed. See K.W. Thompson Tool Co., supra, 656 F.Supp. 1077. However, in the meantime, KWT and its three officers had filed the instant action in Strafford County Superior Court on December 5, 1986, and it was removed to this court on December 31, 1986.

In their 25-count amended complaint hereinafter "complaint", plaintiffs detail the five-year history of their contacts with EPA and the New Hampshire Water Supply and Pollution Control Commission ("NHWSPCC") which preceded the criminal prosecution. As summed up by plaintiffs in the first paragraph of their complaint,

This is an action for damages and deprivation of civil rights against United States and New Hampshire employees and agents for, among other things, providing false and misleading data, abusing the National Pollutant Discharge Elimination System NPDES permit process, threatening the right to bear arms, impairing freedom of expression, abuse of process, selective prosecution, and unreasonable search and seizure by investigative and/or law enforcement officers, obstruction of justice, and destruction of evidence; all based upon the willful, wanton, reckless and negligent supervision, training, and performance of United States and New Hampshire employees and agents.

The amended complaint was filed before the other defendants in this matter were either dismissed or remanded to state court, and many of the 25 counts contained therein do not involve the actions of the remaining individual federal defendants. In fact, only three counts in the complaint allege causes of action against the remaining defendants. They are: Count I, which alleges that the defendants violated plaintiffs' First, Second, Fourth, and Fifth Amendment rights as guaranteed by the United States Constitution;⁶ Count II, which alleges deprivation of the same constitutional rights by actions under color of state law in violation of 42 U.S.C. § 1983; and Count III, which claims a conspiracy among the defendants to deprive plaintiffs of their constitutional rights in violation of 42 U.S.C. § 1985, motivated by a bias against plaintiffs because KWT manufactures guns. Defendants have moved to dismiss all of the claims against them, raising numerous arguments in support thereof. Discussing only those issues necessary for the resolution of this motion, the Court will address the remaining counts seriatim.

1. 42 U.S.C. § 1983 (Count II)

In Count II, plaintiffs allege that the six defendants, acting under color of the laws of the State of New Hampshire, violated plaintiffs' rights to bear arms; their rights to freedom of expression and association; their protections against selective and malicious prosecution and abuse of process; their rights to receive procedural and substantive due process, equal protection, and a fair trial, including protection against obstruction of justice and destruction of evidence; and their rights against unreasonable searches and seizures. Regardless of the sufficiency of the allegations of these various constitutional deprivations, the Court finds that plaintiffs may not recover under section 1983 from these defendants. Title 42 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

(Emphasis added.) It is well established that the above-quoted language requiring action under color of state law to establish a section 1983 claim means that actions of federal officers are at least facially exempt from its proscriptions. District of Columbia v. Carter, 409 U.S. 418, 424-25, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973). See also American Science & Eng'g, Inc. v. Califano, 571 F.2d 58, 63 n. 8 (1st Cir.1978) (relief under § 1983 "is available only against state actors, not against agents of the federal government"). There are certain limited circumstances wherein federal officers may be subject to section 1983 liability for actions done under color of state law.

A plaintiff may establish liability by showing that the deprivation of his rights was directly occasioned by acts of federal officials, or he may show that federal officials participated in a conspiracy to deprive him of a constitutional right and that he was in fact so deprived. ... in either case, however, plaintiff must show that the federal officials acted or conspired to act under color of state law; it is not enough that they simply acted in concert with state officials to deprive plaintiff of a constitutional right.

Krohn v. United States, 578 F.Supp. 1441, 1447-48 (D.Mass.1983), rev'd in part on other grounds, 742 F.2d 24 (1st Cir.1984) (emphasis in original; citations omitted).

In the instant case, there are no factual assertions by plaintiffs to support their bald statement that defendants were acting under color of the laws of New Hampshire. Defendants are never asserted to be other than employees and agents of the United States. The complaint falls far short of alleging the type of activity which would permit...