King v. Ayotte

• Decision Date: 14 May 2012
• Docket Number: C.A. No. 1:10–cv–501–JJM.
• Citation: 860 F.Supp.2d 118
• Parties: Christopher KING, Plaintiff, v. FRIENDS OF KELLY AYOTTE, et al., Defendants.
• Court: U.S. District Court — District of New Hampshire

860 F.Supp.2d 118

Christopher KING, Plaintiff,

v.FRIENDS OF KELLY AYOTTE, et al., Defendants.

C.A. No. 1:10–cv–501–JJM.

United States District Court,

D. New Hampshire.

May 14, 2012.

Christopher King, Boston, MA, pro se.

Jennifer L. Parent, Jack B. Middleton, McLane Graf Raulerson & Middleton, Gordon J. MacDonald, Nixon Peabody LLP, Manchester, NH, Brian J.S. Cullen, Cullencollimore PLLC, Nashua, NH, for Defendants.

MEMORANDUM AND ORDER

JOHN J. McCONNELL, JR., District Judge.

This matter arises out of political activities surrounding the 2010 federal elections in New Hampshire. Plaintiff Christopher King brings claims based on his curtailed attempts to attend four political events held on private property during the 2010 election season. Mr. King's Second Amended Complaint (the “Complaint”) alleges violations of the First and Fourteenth Amendments, as well as federal civil rights statutes, and it contains state common law claims. (ECF No. 73.) ¹ Mr. King seeks injunctive and declaratory relief, in addition to compensatory and punitive damages. Motions to Dismiss filed by all defendants are before the Court. (ECF Nos. 78, 79, 80, 83.) Mr. King has objected to those motions. (ECF Nos. 85, 86, 87, 88.)

I. PARTIES

Plaintiff Christopher King is a law school graduate. Mr. King has worked as a reporter for an Indianapolis publication and as an editor for an Ohio publication. Mr. King has participated in press gatherings at political events. With a presence on various websites, some that he owns and maintains, Mr. King is an observer of and commentator on political and current affairs. Mr. King has taken a special interest in the First Amendment and United States Senator Kelly Ayotte.²

Mr. King asserts claims against eleven defendants. Because their arguments and positions are aligned, the Court divides the eleven defendants into two groups, the “Political Defendants” and the “Nashua Defendants.” The Political Defendants are U.S. Senator Kelly Ayotte; the Friends of Kelly Ayotte, Inc.; the New Hampshire Republican State Committee; the Nashua Republican City Committee; Ryan Williams (New Hampshire Republican State Committee Communications Director); Dennis Hogan (Chair of the Nashua Republican City Committee); and Di Lothrop (Nashua Republican City Committee Communications Director). The Nashua Defendants are comprised of the Nashua Police Department; Nashua Police Chief Donald Conley; ³ Nashua Police Lieutenant John Fisher; ⁴ and Nashua Police Officer James Hargreaves.

In the Complaint, Mr. King alleges that as a journalist, he was entitled to attend and report on four publicly advertised political events. While acknowledging that these events were held on private property, he argues that the venues, subject to state licensing or permitting, should be considered places of public accommodation. Mr. King further argues that because the general public was invited, he too was entitled to attend. Moreover, he contends that his activities at these events were restricted because he is African–American. In support of this final assertion, Mr. King points to the fact that while other non-African-American journalists were allowed to attend events, certain defendants prevented his attendance or restricted his reporting.

II. FACTS⁵

During the 2010 campaign season, Mr. King appeared at political events sponsored by state and local Republican committees and by then U.S. Senate candidate Kelly Ayotte. Mr. King alleges that defendants violated his rights at the following four events: a “Facebook Rally;” a “Steak Out Rally;” a “GOP Rally;” and an “Election Eve Rally.”

The “Facebook Rally” was held on August 29, 2010 in a parking lot on private property in Manchester, New Hampshire. Advertised through Facebook, the event was organized to support U.S. Senate candidate Kelly Ayotte. Although he offered to pay to attend the event, certain Political Defendants agreed “in conspiratorial alliance” to have Mr. King removed “because he represents a strident black man looking for answers and questioning Ms. Ayotte about sensitive issues.” (ECF No. 73–3 at 4.)

The “Steak Out Rally” was held on September 12, 2010 at the Crowne Plaza Hotel in Nashua, New Hampshire. The Nashua Republican City Committee event featured Arizona Sheriff Joe Arpaio. Although there was an admission fee to attend, the event was otherwise open to the public. Mr. King interviewed Sheriff Arpaio at the Crowne Plaza without incident. When other media members attempted to ask Ms. Ayotte questions, a Nashua GOP secretary “spoke out of turn and struck” Mr. King's camera with a flier. (ECF No. 73–1 at 3.) Nashua police officers “stood by and did nothing.” Id. Defendant Nashua Police Officer James Hargreaves then told Mr. King he needed a ticket to attend the event. When Mr. King offered to purchase a ticket as either a member of the press or the public, Officer Hargreaves directed him to the media area. Defendant Ryan Williams then “cornered” Mr. King and informed him that “he was not a member of the press.” Id. Mr. Williams and defendant Di Lothrop then ordered Nashua Police Officers to remove Mr. King from the Crowne Plaza under threat of arrest. Mr. King left as a result of the threat.

The “GOP Rally,” featuring U.S. Senator John McCain, was held at V.F.W. Post 483 in Nashua, New Hampshire on October 2, 2010. This event was publically advertised, but asked those planning to attend to respond as such. Mr. King responded that he would attend. Defendant Nashua Police Lt. John Fisher greeted Mr. King upon his arrival and told him that he was to stay outside on the sidewalk. Lt. Fisher “spoke out of turn” as Mr. King attempted to question defendant Ms. Ayotte while a nearby car was backing up. (ECF No. 73–1 at 6.) Lt. Fisher “admonished” Mr. King “on the backing car,” even though “white people” were “closer to the car.” Id. Lt. Fisher cautioned Mr. King to stay on the sidewalk. Id.

An “Election Eve Rally” was held on November 1, 2010 at Popovers Coffeehouse in Portsmouth, New Hampshire. While Mr. King was allowed into the coffeehouse, an individual identified with Ms. Ayotte's Senate campaign interfered with his ability to gather news by “continually” talking to him “while he was attempting to run video.” (ECF No. 73–2 at 2.)

III. STANDARD OF REVIEW

In reviewing a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court accepts as true the well-pleaded factual allegations of the complaint and draws all reasonable inferences in favor of the plaintiff. Cook v. Gates, 528 F.3d 42, 48 (1st Cir.2008); McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir.2006). To withstand “a motion to dismiss, a complaint must allege ‘a plausible entitlement to relief.’ ” ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46, 58 (1st Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1967–69, 167 L.Ed.2d 929 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678–87, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “[A] plaintiff ... is ... required to set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.” Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988).

Moreover, the “tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). A complaint “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). While accepting the facts as alleged in the complaint as true, “this deferential standard does not force [a] court to swallow the plaintiff's invective hook, line, and sinker; bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like need not be credited.” Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996).

Because Mr. King is pro se, the Court views his pleadings liberally. The Court is “solicitous of the obstacles that pro se litigants face, and while such litigants are not exempt from procedural rules, [the Court] hold[s] pro se pleadings to less demanding standards than those drafted by lawyers and endeavor[s], within reasonable limits, to guard against the loss of pro se claims due to technical defects.” Dutil v. Murphy, 550 F.3d 154, 158–59 (1st Cir.2008) (citing Boivin v. Black, 225 F.3d 36, 43 (1st Cir.2000)).

IV. ANALYSIS

Mr. King's Complaint contains seven causes of action. The first three involve federal statutes. Count I is brought pursuant to 42 U.S.C. § 1983 and alleges violations of the First and Fourteenth Amendments to the United States and New Hampshire constitutions. Mr. King also alleges in Count I unlawful prior restraint, unlawful viewpoint-based discrimination, and unlawful content-based discrimination. Count II is brought pursuant to 42 U.S.C. § 1981 and alleges racial discrimination in contract. Count III is brought pursuant to 42 U.S.C. § 1985 and alleges a conspiracy.

Count IV is brought pursuant to New Hampshire Rev. Stat. Ann. § 354–A:16, Equal Access to Public Accommodations. At the motions to dismiss hearing, Mr. King affirmed that he was no longer pressing Count IV. As such, Count IV is DISMISSED.

The final three counts are common law state claims: Count V is a common law assault claim; Count VI is a common law intentional infliction of emotional distress claim; and Count VII is a common law negligence claim. As explained below, the Court will exercise supplemental jurisdiction over these claims. See28 U.S.C. § 1367(c)(3).⁶

A. First Amendment Rights Under 42 U.S.C. § 1983 (Count I)

In his first cause of action, Mr....