UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Kevin J. Bean

v. Civil No. 06-cv-161-PB

State of New Hampshire, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff Kevin J. Bean has filed a complaint,

pursuant to 42 U.S.C. § 1983, alleging that defendants have

violated his rights under the Fourth, Fifth and Fourteenth

Amendments to the United States Constitution and New Hampshire

law (document no. 1). Seeking injunctive, declaratory and

monetary relief, he brings this action against the following

defendants: Sanbornton Township; Sanbornton Police Department

(“SPD”) and three SPD employees, Chief Mark R. Barton, Detective

Jeffrey S. Buskey and Officer John Doe I; the New Hampshire State

Police Department (“NHSPD”) and two NHSPD employees, Troopers

John Doe II and John Doe III; and the New Hampshire Department of

Probation and Parole (“NHDPP”) and two NHDPP employees, Chief

Robert Patrick and Field Services Officer Brad Drown. The

complaint is before me for preliminary review to determine

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whether, among other things, it states a claim upon which relief

may be granted. See 28 U.S.C. § 1915A; U.S. District Court for

the District of New Hampshire Local Rule (“LR”) 4.3(d)(2).

For the reasons stated below, I find that Bean has alleged:

(1) Fourth Amendment claims arising from an unreasonable search

and seizure against the SPD, NHSPD, NHDPP, Barton, John Doe I-III

and Drown (Counts I and III); (2) Fourth and Fourteenth Amendment

claims arising from the retention, mishandling and/or destruction

of seized property against the SPD, NHSPD, NHDPP, Barton, Buskey,

John Doe I-III and Drown (Counts II, IV, VII and IX); and (3)

Fourteenth Amendment claims arising from inadequate notice of

seizure and inadequate pre-deprivation and post-deprivation

remedies against the SPD, NHDPP, Sanbornton Township, Barton,

Buskey and Drown (Counts V, VI and VIII). I further recommend

that this Court exercise jurisdiction over his related

supplemental state law claims. I recommend dismissal of all

remaining claims.

Standard of Review

In reviewing a pro se complaint, this Court must construe

the pleading liberally and in favor of the pro se litigant. See

Ayala Serrano v. Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990)

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(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)). At this

preliminary stage of review, all factual assertions made by the

plaintiff and inferences reasonably drawn therefrom must be

accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st

Cir. 1996)(stating the “failure to state a claim” standard of

review and explaining that all “well-pleaded factual averments,”

not bald assertions, must be accepted as true). This review

ensures that pro se pleadings are given fair and meaningful

consideration. See Eveland v. Director of CIA, 843 F.2d 46, 49

(1st Cir. 1988).

Background

The following facts are construed in the light most

favorable to Bean. Convicted by the New Jersey Superior Court

(Monmouth County) on March 4, 2005, Bean is serving his sentence

at the Albert C. Wagner Youth Correctional Facility, New Jersey

Department of Corrections, in Bordentown, New Jersey. While the

record is silent as to the offense for which he was convicted,

Bean alleges that the claims raised in this action are “unrelated

to his current sentence of incarceration and/or conditions of

confinement. . .” At all times relevant to this action, Bean was

under parole supervision by the NHDPP. The instant claims arise

out of a search and seizure conducted at Bean’s residence and

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1The contents seized included the following: furniture;

electronics; electrical and plumbing fixtures; building

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subsequent proceedings before the New Hampshire District Court

(Franklin County) and New Hampshire Superior Court (Merrimack

County), during which he allegedly was denied adequate state predeprivation and post-deprivation remedies for property seized

pursuant to a criminal investigation. 

On June 29, 2004, Bean and an associate, Nicholas Werderski,

were in the process of renovating the premises leased by Bean and

located at 389 Woodman Road, Sanbornton, New Hampshire. That

day, defendants SPD, NHSPD, NHDPP, Barton, Drown and John Doe IIII executed a search warrant issued by the Franklin District

Court to search for and seize three appliances from Bean’s

residence - a refrigerator, dishwasher and range. During the

course of the search and because of his “fear of further

incarceration,” Bean fled the scene and did not return until the

next day. Despite defendants having located and seized the items

listed in the warrant, the initial seizure was followed by a

sweeping and indiscriminate search of Bean’s residence which

resulted in the seizure of the majority of the contents of his

home. The property seized allegedly is valued at approximately

$100,000.00.1 According to Bean, the search was unreasonable in

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materials; sporting goods; over-the-counter medicines; jewelry;

clothing; tools; antiques; a motor vehicle; photographs; various

unknown documents; files; receipts; financial records;

correspondence; and undetermined miscellaneous materials.

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that it: (1) exceeded the scope of the warrant; (2) spanned over

twenty-one months since the date of initial seizure; and (3)

invited members of the public (by notice published in a local

newspaper), who reported stolen property, to inspect and claim

property without providing proof of ownership.

Bean claims that defendants improperly disposed of his

property or withheld it indefinitely. Despite his repeated

requests for its return, the State informed him that it would

retain the property pending an investigation and confirmation

that it was not stolen. According to Bean, the State has failed

to account for the seized property and provide him with an

accurate inventory and also failed to properly maintain and store

the property thereby causing preventable damage and destruction. 

In addition, the State allegedly failed to maintain the necessary

chain-of-custody records regarding the transportation and

location of the property and has released certain items to third

persons. The State also failed to file the “Search Warrant

Return” with the court of issuance.

Bean further claims that the State seized his property

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without notifying him of the seizure or the procedures by which

he may seek its return. Nor was he notified of any investigation

or civil or criminal matter pending against him with regard to

the seized property. He claims that because the State has not

instituted forfeiture proceedings against him, it is obligated to

return his property. He asserts that Sanbornton Township policy

governing the disposition of property seized during the course of

a criminal investigation permits the municipality to dispose of

an individual’s property without affording him prior notice or an

opportunity to be heard. 

On December 20, 2004, Bean filed a motion for return of

property with the Franklin District Court. The court allegedly

scheduled an initial hearing but failed to notify him of the

January 27, 2005 hearing date. Subsequently, the court continued

the hearing to March 3, 2005, based in part on Bean’s failure to

appear for the initial hearing. Because of his incarceration in

the State of New Jersey and financial inability to retain

counsel, Bean moved for a continuance on February 21, 2005. The

court allegedly never responded to his request and dismissed his

motion for return of property without a hearing. The court also

allegedly failed to respond to his request for a copy of the

Search Warrant Return.

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Bean subsequently petitioned the Merrimack County Superior

Court to exercise supervisory jurisdiction over the above matters

and to grant a petition for declaratory judgment. The court

denied his petition and instructed Bean to seek relief in the

criminal case that involved the seizure of his property. Because

the State has taken no legal action against Bean or his property,

Bean claims that he is now without adequate state postdeprivation remedies. 

Discussion

I. Section 1983 Claims

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal law. See 42

U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981);

Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir. 1997). In

order to be held liable for a violation under Section 1983, a

defendant’s conduct must have been a cause in fact of the alleged

constitutional deprivation. See Monell v. Department of Social

Servs., 436 U.S. 658, 692 (1978); Soto v. Flores, 103 F.3d 1056,

1061-62 (1st Cir. 1997). The premise of Bean’s Section 1983

action is that defendants violated his Fourth, Fifth and

Fourteenth Amendments rights by (1) conducting an unreasonable

search and seizure of his residence; (2) improperly retaining,

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destroying and/or mishandling of the seized property; and (3)

failing to provide him with adequate notice of seizure and

denying him adequate pre-deprivation and post-deprivation

remedies.

A. Counts I and III

 Bean alleges that defendants conducted a search and seizure

at his residence in violation of his Fourth Amendment right to be

free from unreasonable searches and seizures. Count I of the

complaint alleges that the SPD, NHSPD, NHDPP, Barton, Buskey,

John Doe I-III and Drown conducted a search and seizure that was

outside the scope of the warrant and without probable cause. 

Count III alleges that the SPD, NHDPP Barton, Buskey, John Doe I

and Drown conducted an open-ended search and seizure of the

residence, which continued for more than twenty-one months and

which involved participation by members of the public.

The Fourth Amendment preserves the right of citizens “to be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. Const. amend. IV. 

Generally, to satisfy the Fourth Amendment’s reasonableness

requirement, a search or seizure must be “accomplished pursuant

to a judicial warrant issued upon probable cause.” Skinner v.

Railway Labor Executives’ Ass’n, 489 U.S. 602, 619 (1989). The

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Fourth Amendment prohibits general and open-ended search warrants

and requires that a search warrant particularly describe both the

place to be searched and the persons or things to be seized. See

Dalia v. United States, 441 U.S. 238, 255 (1979). 

The federal constitution does not prohibit the use of

civilians in searches. Bellville v. Town of Northboro, 375 F.3d

25, 32 (1st Cir. 2004). However, “[c]ourts have articulated

guidelines for evaluating police involvement of citizens in

searches under the Fourth Amendment’s reasonableness standard.” 

Id. at 33. “The civilian must have been serving a legitimate

investigative function”, and “the officers must have some

demonstrable need for the presence of the civilian.” Id.

Here, Bean alleges that on June 29, 2004, the SPD, NHSPD,

NHDPP, Barton, Drown and John Doe I-III executed a search warrant

issued by the Franklin District Court to search for and seize

three appliances from his residence. Although defendants located

and seized the items listed in the warrant, they subsequently

conducted a sweeping and indiscriminate search of Bean’s

residence which resulted in the seizure of the majority of the

contents in his home. According to Bean, the search was

unreasonable in that it: (1) exceeded the scope of the warrant;

(2) spanned over twenty-one months since the date of initial

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seizure; and (3) invited members of the public (by notice

published in a local newspaper) who reported stolen property to

inspect and claim property without proof of ownership. If true,

these allegations may well give rise to a Fourth Amendment claim

against the SPD, NHSPD, NHDPP, Barton, Buskey, Drown and John Doe

I-III (Counts I and III). 

B. Counts II, IV, VII and IX

Bean alleges that defendants mishandled, destroyed and/or

retained his property without procedural due process, in

violation of his Fourth, Fifth and Fourteenth Amendments rights. 

Count II of the complaint alleges that the SPD, NHSPD, NHDPP,

Barton, Buskey, John Doe I-III and Drown recklessly mishandled

property seized from Bean’s residence, thereby causing

preventable and unnecessary damage, in violation of his Fourth,

Fifth and Fourteenth Amendment rights. Count IV requests this

Court to declare that the SPD, NHDPP, Barton, Buskey, John Doe I,

and Drown conducted a search and seizure and caused loss and

damage to the seized property, in violation of Bean’s Fourth,

Fifth and Fourteenth Amendment rights. Bean also requests this

Court to order the State to conduct an accounting of the property

seized and released to third parties and to disclose its records

pertaining to its accounting, inventory and chain-of-custody. 

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Count VII requests this Court to declare that the SPD,

Sanbornton Township, Barton and Buskey failed to properly

maintain the seized property, in violation of Bean’s Fifth and

Fourteenth Amendment rights. Count IX alleges that the SPD,

Sanbornton Township, Barton and Buskey unlawfully retained Bean’s

property in violation of his Fifth and Fourteenth Amendment

rights. Bean requests this Court to order the immediate return

of all property seized from his residence and hold defendants

liable for any damage to his property. 

1. Fourth Amendment Claims

“The mere fact that property was damaged in the course of

executing [a] warrant does not establish a constitutional

violation.” Clark v. Fiske, No. SA-05-CA-0485-FB, slip. op. at

*3, 2005 WL 3617731 (W.D. Tex. 2005). In executing a warrant,

officers must, on occasion, damage property in order to perform

their duties. Id. (citing Dalia v. United States, 441 U.S. 238,

258 (1979)). However, “[e]xcessive or unnecessary destruction of

property in the course of a search may violate the Fourth

Amendment, even though the entry itself is lawful and the fruits

of the search are not subject to suppression.” United States v.

Ramirez, 523 U.S. 65, 71 (1998). To the extent the SPD, NHSPD,

NHDPP, Barton, Buskey, John Doe I-III and Drown caused excessive

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and unnecessary destruction to the seized property, I conclude

that Bean has alleged a Fourth Amendment claim against them for

purposes of preliminary review (Counts II and IV).

2. Fifth Amendment Claims

Bean further alleges that defendants’ actions amounted to a

deprivation of property in violation of his due process rights

under the Fifth Amendment. The Fifth Amendment only applies to

due process claims against federal officials, not state or local

governments. See Crockett v. Caruso, No. 1:06-CV-274, slip. op.

at *5, 2006 WL 1275055 (W.D. Mich. 2006)(“The Fifth Amendment’s

Due Process Clause applies only to actions by the federal

government, while the identical clause in the Fourteenth

Amendment protects against misconduct by state actors.”); 

Wrinkles v. Davis, 311 F. Supp. 2d 735, 738 (N.D. Ind. 2004)

(“The Fifth Amendment’s due process clause applies only to acts

of the federal government and does not limit actions of state

officials.”). Allegations of federal action are required to

state a claim for deprivation of due process in violation of the

Fifth Amendment. See Tylena M. v. Heartshare Children’s Servs.,

390 F. Supp. 2d 296, 311 (S.D.N.Y. 2005). Because Bean has named

only state and municipal defendants, I conclude that he has

failed to state a cognizable Fifth Amendment claim and therefore

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2Although the Fifth Amendment’s “Just Compensation Clause”

applies to the states through the Fourteenth Amendment, see

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency,

535 U.S. 302, 307 (2002), Bean’s allegations do not support or

even identify such a claim.

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recommend dismissal of this claim in its entirety.2

3. Fourteenth Amendment Claims

Bean alleges that defendants’ actions constitute a

deprivation of property in violation of his due process rights

under the Fourteenth Amendment. The Fourteenth Amendment

provides that no State shall “deprive any person of life,

liberty, or property without due process of law.” U.S. Const.

amend. XIV. While an authorized, intentional deprivation of

property is actionable under the Due Process Clause, a random, 

unauthorized intentional deprivation of property does not violate

the Due Process Clause if the State provides an adequate postdeprivation remedy. See Hudson v. Palmer, 468 U.S. 517, 532,

n.13 (1984). To the extent Bean alleges that the deprivation was

authorized, intentional and carried out pursuant to established

government procedures, regulations or statutes, he has stated a

cognizable Fourteenth Amendment claim. See Logan v. Zimmerman

Brush Co., 455 U.S. 422, 436 (1982). To the extent he alleges

that the deprivation was unauthorized and intentional, he has

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3While Bean refers to the Fourth Amendment, he appears to

allege only due process claims, which I liberally construe to

arise under the Fourteenth Amendment. As explained more fully

above, he has named only state and municipal defendants,

therefore, he fails to allege a cognizable due process claim

under the Fifth Amendment.

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alleged that the State of New Hampshire has denied him adequate

post-deprivation remedies. Bean alleges that he filed a motion

for return of property in the Franklin District Court and

Merrimack County Superior Court but that the remedies available

to him were inadequate. If true, these allegations may well give

rise to a cognizable Fourteenth Amendment due process claim

against the SPD, Sanbornton Township, NHSPD, NHDPP, Barton,

Buskey, John Doe I-III and Drown NHDPP (Counts II, IV, VII and

IX).

C. Counts V, VI and VIII

Bean alleges that defendants failed to provide him with

notice of the seizure and denied him adequate state predeprivation and post-deprivation remedies, in violation of his

Fourteenth Amendment3 right to due process. Count V of the

complaint alleges that the SPD, NHDPP, Barton, Buskey and Drown

failed to provide him with adequate notice of the seizure,

withheld his property and denied him adequate post-deprivation

remedies. Bean requests this Court to order the return of all

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property illegally seized from his residence. 

Count VI alleges that the SPD, Sanbornton Township, Barton

and Buskey failed to provide him with adequate notice and an

opportunity to be heard before disposing of his property. Bean

requests this Court to stay further transfer, forfeiture or

disposal of his property, to order the State to conduct an

accounting of all property seized and released to third parties

and to order the State to disclose its records pertaining to

accounting, inventory and chain-of-custody. He also requests

this Court to declare defendants liable for the property seized

from his residence. 

Count VIII alleges that the SPD, Sanbornton Township and

Barton failed to require that notice and an opportunity to be

heard be given to parties dispossessed of seized property prior

to its disposal. Defendants allegedly adopted and applied an

unconstitutional policy regulating the disposition of property

seized during a criminal investigation. Bean requests this Court

to compel defendants to disclose township policy regulating the

disposition of property seized incident to a criminal

investigation.

“The Due Process Clause of the Fourteenth Amendment requires

that a private citizen be given notice and an opportunity to be

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heard before a government official seizes his or her property.” 

Quik Cash Pawn & Jewelry, Inc. v. Sheriff of Broward County, 279

F.3d 1316, 1322 (11th Cir. 2002)(citing Fuentes v. Shevin, 407

U.S. 67, 80-82 (1972)). “[S]ome exceptions to the general rule

requiring predeprivation notice and hearing [exist], but only ‘in

extraordinary situations where some valid governmental interest

is at stake that justifies postponing the hearing until after the

[seizure]’”. Id. (citing United States v. James Daniel Good Real

Prop., 510 U.S. 43, 53 (1993)). “The supreme court has suggested

that such a ‘limited circumstance’ exists when law enforcement

officials seize property as evidence of a crime.’” Id. 

Here, it is unclear whether the seizure falls within this

exception, because Bean purportedly has not been charged with a

crime incident to the seizure of June 29, 2004. He alleges that

defendants seized his property without adequate notice or a

hearing, withheld his property and denied him adequate postdeprivation remedies. He further alleges that defendants have

not initiated forfeiture proceedings against him. If true, his

allegations may well give rise to a cognizable Fourteenth

Amendment Due process claim against the SPD, Sanbornton Township,

NHDPP, Barton, Buskey and Drown.

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 D. Count X

In Count X of the complaint, Bean requests this Court to (1)

declare the Franklin County District Court’s dismissal of his

Motion for the Return of Seized Property prejudicial and an abuse

of judicial discretion; (2) declare him without adequate postdeprivation remedies; and order the State and Franklin District

Court “to act in accordance with [New Hampshire] law and Rules of

Court, and afford [him] the same level of Due Process guarantees

otherwise generally allotted the Public at large.”

As stated above, “Section 1983 ‘provides a remedy for

deprivations of rights secured by the Constitution and laws of

the United States when that deprivation takes place under color

of any statute, ordinance, regulation, custom, or usage, of any

State. . .’” Estades-Negroni v. CPC Hosp. SanJuan Capestrano, 412

F.3d 1, 4 (1st Cir. 2005)(quoting Rockwell v. Cape Cod Hospital,

26 F.3d 254, 255 (1st cir. 1994)). If the plaintiff fails to

allege facts sufficient to establish either the deprivation of a

federal right or that the defendant or defendants acted under

color of state law, then the § 1983 claim is subject to

dismissal.” Id.

Here, Bean has not identified a deprivation of a federally

secured right or any constitutional injury. See Aponte-Torres v.

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Univ. of P.R., 445 F.3d 50, 55 (1st Cir. 2006)(quoting Rogan v.

City of Boston, 267 F.3d 24, 27 (1st Cir. 2001))(“A plaintiff

seeking to recover under section 1983 must allege what is

colloquially known as ‘constitutional injury,’ that is, he or she

must identify a deprivation of some federally secured right.”). 

Because the above claims fail to allege facts sufficient to

establish the deprivation of a federal right, I recommend that

they be dismissed (Count X).

II. Official Capacity

Construed liberally, the complaint seeks declaratory,

injunctive and monetary relief for wrongs committed by the NHSPD,

NHDPP, John Doe II-III and Drown as state actors in their

official capacities. It is well-settled that the Eleventh

Amendment bars suits against state entities and state agents

working in their official capacities unless the state has

expressly waived immunity, which has not been done by New

Hampshire for actions brought under Section 1983. See Puerto

Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.

139, 144 (1993) (absent waiver, neither a State nor agencies

acting under its control may be subject to suit in federal

court); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71

(1989)(holding that neither a state nor its officials acting in

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their official capacities are “persons” under Section 1983). 

Official capacity suits against officers of an agency are simply

“another way of pleading an action against an entity of which an

officer is an agent.” Monell, 436 U.S. at 690 n.55. To the

extent Bean brings official capacity claims for monetary relief

against the state defendants, all of whom are officials or

employees of the NHSPD or NHDPP, I recommend that those claims be

dismissed. 

On the other hand, official capacity actions against state

actors for prospective injunctive relief are not treated as

actions against the state and may be considered under Section

1983. See Will, 491 U.S. at 71 n.10; Ex parte Young, 209 U.S.

123, 159-60 (1908). Thus, Bean is not barred from bringing

claims for prospective injunctive relief against the defendants

in their official capacities.

III. Municipal Liability

The complaint names the Sanbornton Township and the SPD, a

municipal entity, as defendants in this action. Municipalities

and local government entities are “persons” within the meaning of

Section 1983. See Monell, 436 U.S. at 690. A municipal entity

cannot be held liable under Section 1983 on a theory of

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respondeat superior or vicarious liability; rather the

municipality itself must proximately cause the constitutional

injury, through promulgation or tacit approval of a policy or

custom. See City of Canton v. Harris, 489 U.S. 378, 385 (1989). 

To state a viable Section 1983 claim, a plaintiff must allege in

substance that the challenged municipal custom or policy was the

“moving force” behind the constitutional violations. See Board

of the County Comm’rs v. Brown, 520 U.S. 397, 404 (1997); McCabe

v. Life-Line Ambulance Serv., 77 F.3d 540, 544 (1st Cir. 1996)

(citations omitted). Supervisors similarly can be held liable

only on the basis of their own acts or omissions, amounting to

reckless or callous indifference to the constitutional rights of

others. See Gaudreault v. Salem, 923 F.2d 203, 209 (1st Cir.

1990).

In this action, if Bean intends to pursue claims against

Sanbornton Township and the SPD he must, at a minimum, allege

that his constitutional deprivations were the product of a

municipal custom or policy. Liberally construing the complaint,

I conclude that the wrongful conduct ascribed to the municipal

defendants was the product of an unconstitutional municipal

custom or policy. The alleged deprivations stem from Sanbornton

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Township policy governing the disposition of property seized

during the course of a criminal investigation and permitting the

municipality to dispose of an individual’s property without

affording him prior notice or an opportunity to be heard. 

Construed liberally, the complaint suggests that Sanbornton

Township or the SPD was the “moving force” behind the acts or

omissions allegedly taken by the SPD employees. Accordingly, I

conclude that the complaint states a viable claim premised upon

municipal liability against Sanbornton Township and the SPD. 

The complaint also names Barton, Buskey and John Doe I in

their official capacities as officers of the SPD. Official

capacity suits against officers of an agency are simply “another

way of pleading an action against an entity of which an officer

is an agent.” Monell, 436 U.S. at 690 n.55. See also Brandon v.

Holt, 469 U.S. 464, 471 (1985)(suits against parties in their

official capacities treated as suits against the municipality). 

While defendants’ conduct may not rise to the level of deliberate

indifference, their acts or omissions may amount to reckless or

callous indifference to Bean’s constitutional rights. As

employees of the SPD, defendants had knowledge of the municipal

policy that allegedly caused the underlying deprivations. 

Because I find municipal liability as to Sanbornton Township and

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the SPD, I extend that reasoning to above individual defendants

and conclude that the official capacity claims against them are

cognizable for purposes of preliminary review.

IV. State Law Claims

Construed very liberally, the complaint alleges that

defendants wrongfully withheld and/or disposed of Bean’s property

in violation of N.H. Rev. Stat. Ann. (“RSA”) § 595-A:5 (governing

the seizure, custody and disposition of property seized during

the execution of a search warrant). See State v. Brown, 125 N.H.

346, 351, 480 A.2d 901, 905 (1984)(holding that RSA 595-A:6

“focuses on the owner of the items seized and provides procedures

by which he or she may recover possession of he items. A

violation of may give rise to civil liability.”). To the extent

Bean’s state law claims are so related that they appear to form

part of the “same case or controversy” of his viable federal

claims under the Fourth and/or Fourteenth Amendment, I conclude

that this Court may exercise supplemental jurisdiction over the

state law claims. See 28 U.S.C. § 1367(a) (providing for

supplemental jurisdiction over claims that are so related they

form part of the same case or controversy). 

Conclusion

For the reasons stated above, I find that Bean has alleged:

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4If Bean wishes to pursue his claims against the

unidentified Doe defendants, he will have to obtain the

defendants’ full names in discovery and appropriately move to

amend the complaint. To this end, upon service of this action on

the named defendants, Bean can serve the named defendants with

interrogatories to obtain the full name of the presently

unidentified defendants pursuant to Fed. R. Civ. P. 33(a) which

states in pertinent part:

Without leave of court or written stipulation, 

any party may serve upon any other party 

written interrogatories, not exceeding 25 in 

number including all discrete subparts, to be 

answered by the party served or, if the party 

served is a public or private corporation or a 

partnership or association or governmental 

agency, by an officer or agent, who shall 

furnish such information as is available to 

the party.

Bean is further instructed to forward a summons to this Court

with each defendant’s proper name.

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(1) Fourth Amendment claims arising from an unreasonable search

and seizure against the SPD, NHSPD, NHDPP, Barton, John Doe I-III

and Drown (Counts I and III); (2) Fourth and Fourteenth Amendment

claims arising from the retention, mishandling and/or destruction

of seized property against the SPD, NHSPD, NHDPP, Barton, Buskey,

John Doe I-III4 and Drown (Counts II, IV, VII and IX); and (3)

Fourteenth Amendment claims arising from inadequate notice of

seizure and inadequate pre-deprivation and post-deprivation

remedies against the SPD, NHDPP, Sanbornton Township, Barton,

Buskey and Drown (Counts V, VI and VIII). I further recommend

Case 1:06-cv-00161-SM Document 10 Filed 06/29/06 Page 23 of 24
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that this Court exercise jurisdiction over his related

supplemental state law claims. I recommend dismissal of all

remaining claims. 

If this report and recommendation is approved, the claims as

identified herein will be considered for all purposes to be the

claims raised in the complaint. If the plaintiff disagrees with

the identification of the claims herein, he must do so by

objection filed within ten (10) days of receipt of this report

and recommendation, or he must properly move to amend the

complaint. 

Any further objections to this report and recommendation

must be filed within ten (10) days of receipt of this notice. 

Failure to file objections within the specified time waives the

right to appeal the district court’s order. See Unauthorized

Practice of Law Committee. v. Gordon, 979 F.2d 11, 13-14 (1st

Cir. 1992); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st

Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: June 29, 2006

cc: Kevin J. Bean, pro se 

Case 1:06-cv-00161-SM Document 10 Filed 06/29/06 Page 24 of 24