
USCA1 Opinion

	




          May 6, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2401                           SCOTT W. VEALE AND DAVID T. VEALE,                               Plaintiffs, Appellants,                                          v.                              TOWN OF MARLBOROUGH, N.H.,                                 Defendant, Appellee.                                                                                     ___________________        No. 92-2402                          SCOTT W. VEALE AND DAVID T. VEALE,                               Plaintiffs, Appellants,                                          v.                          UNITED STATES OF AMERICA, ET AL.,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Torruella and Cyr, Circuit Judges.                                             ______________                                 ____________________            Scott W. Veale and David T. Veale on brief pro se.            ______________     ______________                                 ____________________                                 ____________________                      Per Curiam.   Appellants,  Scott  W. and  David  T.                      __________            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                                _   __________________                      A.  The Complaint.                          _____________                      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                                            ____________________            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            _______       ________            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,                             _______   ___ ______    _____            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                                         -3-            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.                          __________                      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                                  __________            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                                         -4-            appeal  to  the district  court in  September  1984.   See 28                                                                   ___            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                                        ______    __________________            U.S.  413 (1923).  In Rooker, the  Supreme Court held that it                                  ______            was the only federal court which could entertain a proceeding            to "reverse or modify"  a state court judgment.   Id. at 416.                                                              ___            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                                                 ___________     ________            Keene,  787 F.2d  704, 710  (1st Cir.) (per  curiam) (private            _____            attorney,  sued   for  actions  taken  as  a  court-appointed            counsel, is  not  acting under  color  of state  law),  cert.                                                                    _____            denied, 479 U.S. 828 (1986).   Appellants' assertion in Count            ______            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                                         -5-            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)                      ______    _____            (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.                      ___                               II.  Appeal No. 92-2401                               II.  Appeal No. 92-2401                               __   __________________                      A.  The Complaint.                          _____________                      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                                         -6-            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                                         -7-            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                                         -8-            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                                         -9-            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.                          __________                      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                                         -10-            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                                                   __________    ________            New Boston, 754  F.2d 38,  44 (1st Cir.),  cert. denied,  474            __________                                 ____________            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                                                                 ________            Environments,  Inc.  v. Estabrook,  680  F.2d  822, 833  (1st            ___________________     _________            Cir.),  cert. denied, 459 U.S. 989 (1982); Chongris v. Bd. of                    ____________                       ________    ______            Appeals  of Town of Andover,  811 F.2d 36,  41-42 (1st Cir.),            ___________________________            cert.  denied, 483 U.S.  1021 (1987).   Rather, such disputes            _____________            are  primarily of  concern  only  to  the  state.    Creative                                                                 ________            Environments, 680 F.2d at 833.            ____________                      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                                            ____________________            2.  Appellants  have  not briefed  any  of  the other  claims            asserted  below.  Thus, they  are waived.   See Gaudreault v.                                                        ___ __________            Municipality of Salem, 923 F.2d 203, 205 n.1 (1st Cir. 1990),            _____________________            cert. denied, 111 S. Ct. 2266 (1991).            ____________                                         -11-            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                        ________                       _________  _______            Enterprises, Inc.  v. City  of Lebanon,  712 F.2d  1524, 1528            _________________     ________________            (1st Cir. 1983) (outright violation in denying a license does            not  automatically  raise  a  due  process  claim);  Creative                                                                 ________            Environments, 680 F.2d at 833.            ____________                      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                      ___            (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                                __________                      ___  ____            Chongris, 811 F.2d at 41.            ________                      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                                            ____________________            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                                         -12-            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                                                     ______            of  the  district  court   in  both  appeals.    Accordingly,            appellants'  motions   for   oral  argument   and   expedited            consideration are denied.                                            ____________________            appellants were parties spanning the years 1982 to 1992.                                         -13-
