1Although not named in the heading of Few’s complaint, the

narrative of the complaint alleges sufficient facts against

Jolene Knight-Ballou, Linda Stalk, and Wayne Evans for me to find

that Few intended to name Knight-Ballou, Stalk, and Evans as

defendants to this action. Accordingly, I will consider them to

be properly named defendants to this action and direct that the

appropriate claims be served on them as directed in the Order

issued simultaneously with this Report and Recommendation.

2Few, a resident of Virginia, originally filed her complaint

in the United States District Court for the Eastern District of

Virginia. That Court determined that venue was proper in the

District of New Hampshire and transferred the matter here.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Sharon Few

v. Civil No. 06-cv-427-SM

Liberty Mutual Insurance Co.,

Liberty Life Assurance Co., et al.1

REPORT AND RECOMMENDATION

Before the Court is the complaint2 of plaintiff Sharon Few,

who has filed suit against Liberty Mutual Life Insurance Company

and Liberty Life Assurance Company (hereinafter referred to

collectively as “Liberty defendants”), and several Liberty

employees. Few’s claims allege violations of the Employee

Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 1 of 26
2

seq., the Racketeer Influenced Corrupt Organizations Act

(“RICO”), 18 U.S.C. § 1962, et seq., federal constitutional and

statutory prohibitions against discrimination based on age and

race, the federal constitution, the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552, et seq., and a number of rights arising

under the laws of various states.

As Few is proceeding both pro se and in forma pauperis, the

complaint is before me for preliminary review. See United States

District Court for the District of New Hampshire Local Rules

(“LR”) 4.3(d)(1)(B). For the reasons stated below, I recommend

dismissal of the FOIA, age discrimination, race discrimination,

federal constitutional claims, and State law claims alleging

violations of the Insurance Act, breach of contract, wrongful

termination, defamation, slander, libel, and general violations

of unspecified rights under New Hampshire, Virginia, Washington,

Oregon, and Florida law from this action. In an Order issued

simultaneously with this Report and Recommendation (hereinafter

the “Simultaneous Order”), I direct that the ERISA and

intentional infliction of emotional distress claims be served

against defendants Liberty Mutual Insurance Company, Liberty Life

Assurance Company, Knight-Ballou, Stalk, and Evans, and direct

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 2 of 26
3

that the RICO claim be served against Knight-Ballou, Stalk, and

Evans.

Standard of Review

Under this Court’s local rules, when a plaintiff commences

an action pro se and in forma pauperis, the magistrate judge is

directed to conduct a preliminary review and to, if appropriate:

report and recommend to the court that the filing be 

dismissed because the allegation of poverty is untrue, 

the action is frivolous or malicious, fails to state a 

claim upon which relief may be granted, or seeks 

monetary relief against a defendant who is immune from 

such relief under 28 U.S.C. § 1915e(2); or it fails to 

establish subject matter jurisdiction under Fed. R. Civ. 

P. 12(b)(1).

LR 4.3(d)(1)(B)(I). In conducting the preliminary review, the

Court construes pro se pleadings liberally. See Ayala Serrano v.

Lebron Gonzales, 909 F.2d 8, 15 (1st Cir. 1990) (following

Estelle v. Gamble, 429 U.S. 97, 106 (1976) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” Ahmed

v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert. denied,

Ahmed v. Greenwood, 522 U.S. 1148 (1998).

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 3 of 26
3Many of the facts alleged by Few were stated in vague and

non-specific terms. Construing the complaint liberally, as I

must, I have attempted to accurately reflect in this Report and

Recommendation the substance of Few’s factual allegations. If

Few disagrees with the facts as recounted, she should do so by

properly objecting to this Report and Recommendation or by

properly moving to amend her complaint.

4Few also must be monitored for multiple myeloma, a cancer

of the blood plasma, for the remainder of her life, and has

elevated muscle enzymes. It is unclear whether or how these

additional conditions have impacted Few’s disability. 

4

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. Dir. of C.I.A., 843

F.2d 46, 49 (1st Cir. 1988).

Background3

Few is a 56 year old African-American woman with multiple

sclerosis, arthritis in her neck, spine, and knees, depression,

and impairment of her short term memory.4 Few claims that her

medical condition is worsening as she ages. 

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 4 of 26
5

Few was employed by Liberty in the 1980s. Few has been

covered by a life insurance policy issued by Liberty since at

least 1988. In May of 1990, while employed as a “retro rater” in

Liberty’s Dover, New Hampshire office, Few became disabled and

unable to work.

It appears that because of her total disability, Liberty

paid the premiums for Few’s life insurance policy from the time

that Few became unable to work until 2005, when Liberty

terminated Few’s policy. Under the terms of Few’s policy,

Liberty required Few to periodically provide proof of her

continued disability in order to maintain Liberty’s payment of

Few’s life insurance premiums. At times, Few states that a 1995

Medicare declaration of total disability was accepted by

defendants as proof of Few’s continued disability. 

From 1990 through 1999, while Few was totally disabled, the

defendants paid the premiums on Few’s insurance policy without

complaint. In 1999, Few requested a copy of her life insurance

policy from Liberty. Few, upon reviewing the policy, discovered

that, due to her disability, she could request a payment of

$25,000 as a benefit of her policy. Few requested the $25,000

payment.

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 5 of 26
5Plaintiff was placed on long-term disability on April 28,

1992.

6

Shortly after Few’s request, in 2000, service of Few’s

policy began to be handled by Jolene Knight-Ballou in Liberty’s

legal department. Knight-Ballou, according to Few, began to make

“unnecessary and illegal demands” on Few. Knight-Ballou also

began to threaten Few with cancellation of her life insurance

policy, worth $66,000, if Few failed to comply with KnightBallou’s demands. Another Liberty legal department employee,

Linda Stalk, also became involved in the administration of Few’s

policy and began using the same threatening tactics employed by

Knight-Ballou. 

Few alleges that, beginning in 2005, she was ordered to

attend medical appointments and provide medical records that

exceeded both the time frame during which such a request could be

made, and the number of appointments that Liberty could require

Few to attend under the terms of the insurance policy. Few

contends that her policy permitted Liberty to request proof of

plaintiff’s continued disability during a period of three months

preceding the April 28 anniversary of plaintiff’s placement on

long-term disability.5 Further, Liberty was only allowed to

request that plaintiff see a doctor once a year. Although Few

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 6 of 26
6The July 1, 2005 letter also stated that Few’s employment

at Liberty had been terminated on April 28, 1992, when she began

receiving long-term disability insurance. Few had not, prior to

receiving that letter, ever received written notification of the

termination of her employment.

7

does not detail specific incidents that occurred between 2000 and

2005, it appears that the defendants’ threatening tactics

continued during that period. 

In April of 2005, Plaintiff attended a doctor’s appointment

at the request of Liberty. Liberty scheduled additional

appointments for Few, but Few refused to attend those

appointments on the grounds that they created more of an

imposition on Few’s life than she was required to tolerate under

the policy. 

On July 1, 2005, defendants cancelled Few’s insurance

policy. Few received notice of the cancellation on July 5, 2005,

by letter advising her that Liberty had decided to close her

account, and that she had until July 31 to convert her life

insurance policy with Liberty to an individual insurance policy.6

The stated reasons for the cancellation were that Few was alleged

not to have attended medical appointments that Liberty had

ordered her to attend. 

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 7 of 26
8

Few alleges that, per the instructions provided to her by

defendants at the time they notified Few of the cancellation of

her policy, she filed a timely appeal of the cancellation of her

insurance policy on August 29, 2005, which was within sixty days

of the issuance of the cancellation notice. Few alleges that,

during the pendency of the appeal, defendants again requested

that, among other things, she attend additional medical

appointments and surrender all of her medical records generated

since February of 2004. Few alleges that while she did satisfy

all of the requests made of her that she was required to satisfy

under the terms of her policy, the requests made by Liberty

during the appeals process continued to exceed that which the

policy permitted Liberty to demand. 

By letter dated October 14, 2005, Few was notified that her

appeal was denied. Few then filed a complaint with the New

Hampshire Department of Insurance (“NHDI”). The NHDI, according

to Few, was unable to understand the language of Few’s insurance

policy or the laws under which defendants claimed authority for

their actions. Few asserts that this confusion was, in part,

because defendants Knight-Ballou, Stalk, and Evans intentionally

supplied misleading and/or false information to the NHDI for

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 8 of 26
9

consideration. For example, Few alleges that the terms of her

insurance policy allow Liberty “to have a physician it designates

examine [Few] whenever it may reasonably require during [her]

disability, but not more often [than] once a year after [Few]’s

insurance has been continued for two full years.” However, Few

charges, defendants falsely advised NHDI only that the terms of

the policy were that “[Liberty] shall have the right to a

physician it designates examine [Few] whenever it may reasonably

require.” Ultimately, the NHDI denied plaintiff’s claim on the

grounds that they “can’t tell [defendants] what to do.” 

Few asserts that she has made every effort to exhaust the

ERISA claim by appeal to the defendants and to the NHDI. Few

asserts, however, that her efforts have been thwarted both by the

false and/or misleading information provided to the NHDI by

defendants’ employees, and by Stalk and Knight-Ballou’s failure,

on several occasions, to provide Few with documents, to which she

is entitled, either altogether or in a timely fashion. 

Additionally, Few claims that she has been provided with a number

of different versions of her policy, including versions relating

to a health insurance policy, although Few has never held a

health insurance policy with Liberty.

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 9 of 26
7The ERISA statute “shall supersede any and all State laws

insofar as they may now or hereafter relate to any employee

benefit plan” covered by ERISA. 29 U.S.C. § 1144(a). ERISA’s

preemption provision is expansive, but does not “extend to the

furthest stretch of its indeterminacy.” Egelhoff v. Egelhoff ex

rel. Breiner, 532 U.S. 141, 146 (2001). “[A] State law relates

to an ERISA plan ‘if it has a connection with or reference to

such a plan.’” Id. at 147 (quoting Shaw v. Delta Air Lines,

Inc., 463 U.S. 85, 97 (1983)). Because I find that Few has

stated a claim under ERISA upon which relief might be granted,

her State law claims that relate to her employee benefit plan are

pre-empted by her ERISA claim. Few’s State law claims that arise

out of laws of general application, that only have an incidental

effect on the administration of the ERISA plan in question here,

10

Few’s complaint states her belief that the defendants’

actions were motivated by racial discrimination which, Few

claims, extends from and continues racial harassment that Few

experienced when she worked at Liberty in 1989 and 1990. 

Further, Few believes that defendants’ actions were

discriminatorily taken based on Few’s age. Few claims that when

she turns sixty, under the terms of the policy at issue here, she

no longer has to submit proof of continued disability in order to

maintain Liberty’s payment of her policy premiums as a benefit. 

Few believes that Liberty wrongly cancelled her life insurance

policy in an effort to make sure that Few did not turn sixty

while covered by the policy.

Discussion

I. ERISA Claim7

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 10 of 26
are not pre-empted. See Egelhoff, 532 U.S. at 147-48. At this

preliminary stage of review, it would be premature to attempt to

delineate the precise contours of ERISA preemption as it applies

to this case. It is clear, however, that at least two of Few’s

State law claims, her breach of insurance contract claim and her

claim raised under New Hampshire’s Insurance Act, are directly

related to Few’s ERISA plan. Accordingly, I recommend dismissal

of the breach of insurance contract and Insurance Act claims. 

Additionally, Few alleges a claim of wrongful termination. 

Few bases the wrongful termination claim on the defendants’

alleged failure to properly notify Few of her termination. I

find that this claim, too, is connected to or relates directly to

Few’s ERISA claim, as she apparently challenges her termination

only insofar as it affects the administration of the benefits in

question here. I therefore recommend that the wrongful

termination claim be dismissed. If this Report and

Recommendation is approved, the dismissal of these claims will be

without prejudice to refiling in a court of appropriate

jurisdiction should it later be determined that the ERISA claim

raised here will not act to pre-empt these State law claims.

11

The primary purpose of the ERISA statue is to provide

“administrative oversight” of employee benefit plans. N.Y. State

Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co.,

514 U.S. 645, 651 (1995). ERISA was enacted to protect the

interests of participants in employee benefit plans. Johnson v.

Watts Regulator Co., 63 F.3d 1129, 1132 (1st Cir. 1995). Few

claims that her interest in a benefit plan supplied to her by her

former employer, and continued for her by that employer as a

benefit accruing to her as a result of her total disability, was

wrongly terminated by the defendants. As such, she brings this

claim pursuant to ERISA.

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 11 of 26
12

In order to state a claim under ERISA, plaintiff must allege

that she has been improperly denied benefits under a “welfare

benefit plan” as defined under 29 U.S.C. § 1002(1) of ERISA. See

Robles v. Combined Ins. Co. of Am., 275 F. Supp. 2d 168, 170

(D.P.R. 2003). “A welfare benefit plan is made up of five

elements: (1) a plan, fund, or program (2) established or

maintained (3) by an employer or by an employee organization, or

by both, (4) for the purpose of providing medical, surgical,

hospital care, sickness, accident, disability, death,

unemployment or vocation benefits, day care centers, scholarship

funds, prepaid legal services, or severance benefits (5) to

participants or their beneficiaries.” Id. (citing 29 U.S.C. §

1002(1)) (internal quotations omitted); see also 1A Couch on

Ins., § 7:16 (3d ed. 2006) (setting out elements of ERISA claim). 

A “participant” is “any employee or former employee of an

employer, . . . who is or may become eligible to receive a

benefit of any type from an employee benefit plan which covers

employees of such employer . . . or whose beneficiaries may be

eligible to receive any such benefit.” 29 U.S.C. § 1002(7). 

Few alleges that she is a “participant,” as that term is

defined by § 1002(7), as she is a former employee of Liberty who

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 12 of 26
13

has become eligible to receive benefits from an employee benefit

plan. Further, Few sufficiently alleges facts to establish that

the plan in question is a “welfare benefit plan” as defined by §

1002(1), that she is covered by that plan, and that the life

insurance plan in question here was either “established or

maintained” by “an employer.” See 29 U.S.C. § 1002. Few has

alleged that for at least ten years she received the benefit of

the plan in question. Few further states that the plan was

providing her with disability benefits in the form of payment of

her life insurance premiums, and that she, as the participant,

was the recipient of the benefits. Finally, Few alleges that her

benefits were wrongly terminated by her former employer. 

Accordingly, I find that the allegations set forth in Few’s

complaint set out the elements of an ERISA claim. Without

commenting on the merits of that claim, I will direct, in the

Simultaneous Order, that the ERISA claim be served on defendants.

II. RICO claim

Few claims that Knight-Ballou, Stalk, and Evans unlawfully

conspired to commit certain acts, in violation the provisions of

the RICO statute, which provides that:

it shall be unlawful for any person employed 

by or associated with any enterprise engaged 

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 13 of 26
8An enterprise is defined to include ‘any individual,

partnership, corporation, association, or other legal entity, and

any union or group of individuals associated in fact although not

a legal entity.’” Ahmed, 118 F.3d at 889; 18 U.S.C. § 1961(4).

14

in, or the activities of which affect, 

interstate or foreign commerce, to conduct 

or participate, directly or indirectly, in 

the conduct of such enterprise’s affairs 

through a pattern of racketeering activity 

or collection of unlawful debt.

18 U.S.C. § 1962(c). To state a private cause of action under

RICO, a plaintiff must allege: (1) the existence of an

enterprise8; (2) that the defendants were employed by or

associated with the enterprise; (3) that the enterprise engaged

in, or the activities of the enterprise affected, interstate

commerce; (4) the employees conducted the enterprise’s affairs

through a “pattern of racketeering activity;” and (5) which is

causally related to the harm alleged. Miranda v. Ponce Fed.

Bank, 948 F.2d 41, 44 (1st Cir. 1991). 

A pattern of racketeering activity is one involving the

commission by named defendants of at least two predicate acts

enumerated in the RICO Statute, the second of which must occur

within ten years of the first. Ahmed, 118 F.3d at 889. 

Predicate acts include any act or threat involving one of a

number of recognized indictable offenses. See 18 U.S.C. §

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 14 of 26
15

1961(1); Ahmed, 118 F.3d at 888. To support the pattern

requirement, a plaintiff must show that either the related

predicate acts “amounted to” continued criminal activity or that

there was a significant possibility that the criminal activity

would continue in the future. Ahmed, 118 F.3d at 889. 

A. The Liberty Defendants 

Few alleges that Liberty Life Assurance Company and Liberty

Mutual Insurance Company, as corporations, are the enterprises

benefitting from a racketeering scheme perpetrated by its

employees Knight-Ballou, Stalk, and Evans. Because she has

alleged that the Liberty defendants are corporations, they

constitute an “enterprise” under § 1961(4). 

A culpable person subject to liability under RICO must be

“employed by or associated with” the RICO enterprise and “the

same entity cannot do double duty as both the RICO defendant and

the RICO enterprise.” Miranda, 948 F.2d at 44 (citations

omitted). Because the racketeer and the enterprise must be

distinct, Few’s RICO claim against the Liberty defendants, who

constitute the enterprise, cannot succeed. I therefore recommend

that the Liberty defendants be dismissed as defendants from the

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 15 of 26
9Although not specifically raised as a theory of liability

by Few, it should be noted that 18 U.S.C. § 1962(c) does not

recognize the liability of the enterprise under a theory of

respondeat superior. Miranda, 948 F.2d at 45.

16

RICO claim.9 As explained below, the RICO claim can, however,

proceed against Knight-Ballou, Stalk, and Evans.

B. Liberty Employees: Knight-Ballou, Stalk, and Evans

Individual officers or employees of the enterprise, acting

within the scope and course of their employment, may be culpable

as racketeers and subject to liability for civil RICO violations.

Id. As stated above, in order to properly state a claim against

the individual Liberty employees, Few must allege that each of

the defendants engaged in a pattern of “racketeering activity”

which resulted in the harm she alleges. Id. at 44.

Liberally construing Few’s claims regarding Knight-Ballou,

Stalk, and Evans, I find that Few has properly alleged that each

of these defendants have committed two or more indictable acts to

subject them to liability under RICO, as those acts are alleged

to have resulted in the harm of which Few complains. 

Specifically, Few alleges that each of these individual

defendants, in furtherance of their efforts to wrongfully deny

benefits to Few, provided, by phone, fax, and mail, false and/or

misleading information to the NHDI. Few claims that these

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 16 of 26
1018 U.S.C. § 1341 defines mail fraud as follows:

Whoever, having devised or intending to devise any 

scheme or artifice to defraud, or for obtaining 

money or property by means of false or fraudulent 

pretenses, representations, or promises, or to 

sell, dispose of, loan, exchange, alter, give 

away, distribute, supply, or furnish or procure 

for unlawful use any counterfeit or spurious coin, 

obligation, security, or other article, or 

anything represented to be or intimated or held 

out to be such counterfeit or spurious article, 

for the purpose of executing such scheme or 

artifice or attempting so to do, places in any 

post office or authorized depository for mail 

matter, any matter or thing whatever to be sent or 

delivered by the Postal Service, or deposits or 

causes to be deposited any matter or thing 

whatever to be sent or delivered by any private or 

commercial interstate carrier, or takes or 

receives therefrom, any such matter or thing, or 

knowingly causes to be delivered by mail or such 

carrier according to the direction thereon, or at 

the place at which it is directed to be delivered 

by the person to whom it is addressed, any such 

matter or thing, shall be fined under this title 

or imprisoned not more than 20 years, or both. If 

the violation affects a financial institution, 

such person shall be fined not more than 

$1,000,000 or imprisoned not more than 30 years, 

or both.

1118 U.S.C. § 1343 defines wire fraud as follows:

Whoever, having devised or intending to devise any 

scheme or artifice to defraud, or for obtaining 

money or property by means of false or fraudulent 

pretenses, representations, or promises, transmits 

or causes to be transmitted by means of wire, 

radio, or television communication in interstate 

17

actions amount to both mail fraud10 and wire fraud,11 both of 

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 17 of 26
or foreign commerce, any writings, signs, signals, 

pictures, or sounds for the purpose of executing 

such scheme or artifice, shall be fined under this 

title or imprisoned not more than 20 years, or 

both. If the violation affects a financial 

institution, such person shall be fined not more 

than $1,000,000 or imprisoned not more than 30 

years, or both.

12Extortion is defined as “the obtaining of property from

another, with his consent, induced by wrongful use of actual or

threatened force, violence, fear, or under color of official

right.” 18 U.S.C. § 1951(b)(2).

18

which are among the enumerated predicate acts which can establish

a pattern of racketeering activity under RICO. See 18 U.S.C. §

1961(1)(B) (listing offense which can constitute predicate acts

to satisfy racketeering element of RICO claim). Few alleges

that, as a result of these acts, her appeal before the NHDI was

wrongfully denied. She further claims that the wrongful denial

of benefits was achieved by the individual defendants’ numerous

acts of extortion,12 in the form of threats that she would lose

her insurance policy if she failed to comply with the

unreasonable demands of the defendants that were designed to

force the cancellation of her policy. Id.

 All of the alleged acts of mail fraud, wire fraud, and

extortion occurred within the last seven years, satisfying the

“within ten years” time frame of the pattern requirement. 

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 18 of 26
19

Further, Few alleges that the acts of mail fraud, wire fraud, and

extortion are the proximate cause of the harm alleged, which is

the loss of benefits and the cancellation of a $66,000 life

insurance policy, which resulted from the improper tactics of the

defendants.

Few has also sufficiently alleged that the Liberty

defendants are involved in interstate commerce, that the conduct

of the individual defendants amounted to continued criminal

activity, that the individual defendants’ conduct will result in

the continued denial of benefits, and that the acts in question

were intentionally inflicted in order to wrongfully deprive Few

of benefits to which she is entitled. These allegations

sufficiently to state a RICO claim to allow that claim to go

forward at this time. In my Simultaneous Order, therefore, I

will direct service of the RICO claim against defendants KnightBallou, Stalk, and Evans.

III. FOIA Claim

“FOIA requires government agencies to ‘make ... promptly

available’ to any person, upon request, whatever ‘records’ the

agency possesses unless those ‘records’ fall within any of nine

listed exemptions. 5 U.S.C. § 552(a)(3).” Church of Scientology

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 19 of 26
20

Int’l v. DOJ, 30 F.3d 224, 228 (1st Cir. 1994); DOI v. Klamath

Water Users Protective Ass’n, 532 U.S. 1, 7 (2001) (“Upon

request, FOIA mandates disclosure of records held by a federal

agency.”). 

FOIA only gives rise to a private cause of action if a

proper request for information is made to and then denied by a

federal agency. See 5 U.S.C. § 551(1) (defining the meaning of

“agency” for FOIA purposes). The defendants here are private

corporations and individuals, and not federal agencies. 

Accordingly, the defendants had no obligation arising under FOIA

to provide Few with information, and I recommend that the FOIA

claim be dismissed from this action.

IV. Age and Race Discrimination Claims

Few has alleged generally that she believes that the actions

taken by the defendants in regard to the cancellation of her

insurance policy were motivated by discrimination based on Few’s

age and race. To support this allegation, Few points only to her

own subjective belief that she has been discriminated against. 

Few’s beliefs are not supported in the complaint by any factual

allegations or cited incidents that would give rise to the 

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 20 of 26
21

inference that the defendants intended to discriminate against

Few in the provision of life insurance benefits. 

In filing a civil rights complaint, a "claim must at least

set forth minimal facts, not subjective characterizations, as to

who did what to whom and why." Guglielmo v. Cunningham, 811 F.

Supp. 31, 35 (D.N.H. 1993) (quoting Dewey v. Univ. of N.H., 694

F.2d 1, 3 (1st Cir. 1982), cert. denied, 461 U.S. 944 (1983));

accord Brown v. Zavaras, 63 F.3d 967, 972 (10th Cir. 1995) ("Even

pro se litigants must do more than make mere conclusory

statements regarding constitutional claims.") (internal citations

omitted). Because I find that Few’s allegations of

discrimination do no more than state conclusory claims based on

Few’s subjective beliefs, I recommend that the age and race

discrimination claims be dismissed. 

V. Federal Constitutional Claims

Few claims that the defendants, all private entities, have

violated her federal constitutional rights. Specifically, Few

alleges that defendants violated her Fourth Amendment right not

to have her person illegally seized, her Eighth Amendment right

not to be subjected to cruel and unusual punishment, and her

Fourteenth Amendment due process rights, as well as her federal

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 21 of 26
22

constitutional right “to the [p]ursuit of [h]appiness,” by 

requiring her to attend medical appointments beyond those

permitted by Few’s insurance policy.

The United States Constitution “erects no shield against

merely private conduct, however . . . wrongful.” Blum v.

Yaretsky, 457 U.S. 991, 1002 (1982). A plaintiff claiming an

infringement of her civil rights must establish that (1) the

defendants deprived plaintiff of a right secured by the

Constitution or laws of the United States, and that (2) the

defendants acted under “color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia.” 42 U.S.C. § 1983. In relation to the

second requirement, a private actor can be held to be a State

actor under only three circumstances: “(i) where there is a

sufficiently close nexus between the state and the challenged

action of the private party so that the action of the party may

be fairly treated as that of the state itself, (ii) where the

private party has exercised powers that are ‘traditionally the

exclusive prerogative of the state,’ or (iii) where the state has

exercised coercive power or has provided such significant

encouragement, either overt or covert that the action of the

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 22 of 26
23

private party must in law be deemed to be that of the state.” 

Lewis v. Law-Yone, 813 F. Supp. 1247, 1254 (N.D. Tex. 1993)

(quoting Blum, 457 U.S. at 1004); see also Jackson v. Metro.

Edison Co., 419 U.S. 345, 357 (1974). Here, Few alleges no facts

that would allow me to consider, even for purposes of preliminary

review, that the defendants here are State actors. Accordingly,

Few cannot state a claim against defendants for violations of her

federal constitutional rights, and I recommend that those claims

be dismissed from this action. 

VI. Claims Based on State Law

A. Defamation, Slander, and Libel Claims

Few has alleged State law claims of defamation, libel, and

slander, alleging that some representation made by defendants to

the NHDI defamed her. Under New Hampshire law, "[t]o establish

defamation, there must be evidence that a defendant . . .

published . . . a false and defamatory statement of fact about

the plaintiff to a third party." Moss v. Camp Pemigewassett,

Inc., 312 F.3d 503, 507 (1st Cir. 2002). “A statement is

defamatory if it ‘tends to lower the plaintiff in the esteem of

any substantial and respectable group of people.’” Id. (citing

Nash v. Keene Publ’g Corp., 127 N.H. 214, 219 (1985)). While Few

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 23 of 26
13Few lumps the defamation, libel and slander claims

together in her complaint. Because she appears to intend that

all of these claims should arise out of statements made to NHDI

by defendants, my finding that the allegations regarding these

claims are insufficient to support a defamation claim applies to

any intended slander or libel claim as well.

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alleges that defendants made some defamatory statement to the

NHDI, she fails to specify what the statement was, how it was

false, and how it defamed her. Few further fails to identify any

substantial and respectable group of people whose opinion of Few

would be lowered by whatever defendants said to the NHDI in

opposition to Few’s appeal. Accordingly, I find that Few’s

claims alleging defamation, slander, and libel do not suffice to

state a claim upon which relief may be granted, and I recommend

that those claims be dismissed.13

B. Intentional Infliction of Emotional Distress

In any civil action of which the district court has original

jurisdiction, the court also has jurisdiction over all other

claims that are so related to the claims in the action within the

original jurisdiction that they form part of the same case or

controversy. 28 U.S.C. § 1367(a). Few alleges generally that

the defendants, by their actions, intentionally caused her to

suffer from emotional distress, and that she did suffer from

emotional distress as a result of the harm she alleges the

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 24 of 26
14As previously noted, I will not at this time address

claims that I have determined would be pre-empted by Few’s ERISA

claims.

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defendants caused to her in wrongfully cancelling her insurance

policy. The intentional infliction of emotional distress claim

is appropriately ordered served on defendants pursuant to this

Court’s pendant jurisdiction, and I will so direct in my

Simultaneous Order.

C. Unspecified Violations of State Law

Few alleges additional theories of defendants’ civil

liability under State law.14 Few alleges generally that her

rights under the State laws of New Hampshire, Virginia,

Washington, Oregon, and Florida have been violated by defendants’

actions. Few is not specific as to what acts have violated which

laws of these states, and I therefore recommend that, to the

extent that Few has not named any specific cause of action under

which her State law rights arise, that the State law claims be

dismissed.

Conclusion

For the reasons stated herein, I recommend dismissal of the

FOIA, age discrimination, race discrimination, Fourth Amendment,

Eighth Amendment, Fourteenth Amendment, and miscellaneous federal

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 25 of 26
26

constitutional claims, as well as State law claims alleging

violations of the Insurance Act, breach of contract, wrongful

termination, defamation, slander, libel, and general unspecified

violations of the laws of New Hampshire, Virginia, Washington,

Oregon, and Florida from this action. In my Simultaneous Order,

I direct service of the ERISA, RICO, and intentional infliction

of emotional distress claims on defendants as described in that

Order. 

Any 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 Comm. 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: May 16, 2007

cc: Sharon Few, pro se

Case 1:06-cv-00427-JL Document 7 Filed 05/16/07 Page 26 of 26