UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Kevin D. Larrabee

v. Civil No. 06-cv-294-SM

Judson P. Stockton

REPORT AND RECOMMENDATION

Pro se plaintiff Kevin D. Larrabee brings this action,

pursuant to 42 U.S.C. § 1983, alleging broad claims of

misrepresentation and perjury (document no. 1). Named as the

defendant is Judson P. Stockton, a private individual and a codefendant in Larrabee’s federal criminal matter (1:04-cr-00097-

SM). The complaint is before me for preliminary review to

determine 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 recommend that

the complaint be dismissed for lack of subject matter

jurisdiction.

Standard of Review

In reviewing a pro se complaint, this Court must construe

the pleading liberally. See Ayala Serrano v. Gonzalez, 909 F.2d

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8, 15 (1st Cir. 1990)(following Estelle v. Gamble, 429 U.S. 97,

106 (1976) to construe pro se pleadings liberally in favor of

that party). At this preliminary stage of review, all factual

assertions made by plaintiff and inferences reasonably drawn

therefrom must be accepted as true. See Aulson v. Blanchard, 83

F.3d 1, 3 (1st Cir. 1996)(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). I apply this standard in

reviewing Larrabee’s complaint.

Background

Larrabee is currently incarcerated at the United States

Penitentiary, Allenwood, in White Deer, Pennsylvania. This

action stems from his federal criminal proceedings (1:04-cr00097-SM), in which Stockton was a co-defendant and allegedly

provided a false and perjurious confession and/or statement

against Larrabee. The false confession/statement allegedly was

introduced into evidence at trial and used to obtain Larrabee’s

conviction. Larrabee now brings this action pursuant to Section

1983, alleging that Stockton’s misrepresentations and perjurious

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1To the extent Larrabee seeks a sentence reduction or

otherwise challenges the constitutionality of his conviction and

confinement, he raises issues regarding the length, rather than

conditions, of his confinement. See Heck v. Humphrey, 512 U.S.

477, 481 (1994); Preiser v. Rodriguez, 411 U.S. 475, 488-490

(1973). Such claims are cognizable only under a petition for a

writ of habeas corpus. See Ross v. Romero, No. 06-2039, WL

2147554 at *1 (10th Cir. 2006) (holding that a prisoner’s claim

for a reduction in the term of his sentence is cognizable only in

a habeas corpus proceeding).

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statements violate his federally protected rights. He requests

an evidentiary hearing and a reduction of sentence.1

Discussion

I. Subject Matter Jurisdiction

A party seeking relief in district court must at least plead

facts which bring the suit within the court’s jurisdiction. See

Fed. R. Civ. P. 8(a)(1)(requiring a plaintiff to set forth in the

complaint “a short and plain statement of the grounds upon which

the court’s jurisdiction depends”). The subject matter of the

federal courts is limited and is set forth generally in 28 U.S.C.

§§ 1331 and 1332. Under these statutes, federal jurisdiction is

available only when a federal question is presented or when the

parties are of diverse citizenship. Id. The presumption is that

a federal court lacks jurisdiction. See Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Consequently,

the burden is on the plaintiff who claims jurisdiction to

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242 U.S.C. § 1983 states, in relevant part: 

Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any 

State or Territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen of 

the United States or other person within the 

jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party 

injured in an action at law, suit in equity, or 

other proper proceeding for redress. . . .

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affirmatively allege jurisdiction and prove it. Id. 

A. Federal Question

A federal question exists where the plaintiff has alleged a

colorable federal claim. See 28 U.S.C. § 1331 (providing for

original jurisdiction in the federal district courts for claims

arising under federal law). See also Aldinger v. Howard, 427

U.S. 1, 7 (1976); BIW Deceived v. Local S6, Indus. Union of

Marine & Shipbuilding Workers, 132 F.3d 824, 832 (1st Cir. 1997). 

In this action, Larrabee is proceeding under federal

question jurisdiction pursuant to Section 1983.2 A plaintiff

claiming an infringement of his civil rights by an individual

defendant must establish that (i) the defendant deprived

plaintiff of a right secured by the Constitution or laws of the

United States, and that (ii) the defendant acted under “color of

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

State or Territory of the District of Columbia.” 42 U.S.C. §

1983; Estades-Negroni v. CPC Hosp. San Juan Capestrano, 412 F.3d

1, 4 (1st Cir. 2005). In relation to the second requirement, the

First Circuit has identified three tests to determine whether a

private party may be deemed the functional equivalent of a state

actor: the state compulsion test; the nexus/joint action test;

and the public function test. Id. Under the state compulsion

test, a private party is deemed a state actor where

the state “‘has exercised coercive power or has provided such

significant encouragement, either overt or covert that the

[challenged conduct] must in law be deemed to be that of the

State.’” Id. at 5 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004-

05 (1982)). Under the nexus/joint action test, a private party

is deemed a state actor where “an examination of the totality of

the circumstances reveals that the state has ‘so far insinuated

itself into a position of interdependence with the [private

party] that it was a joint participant in the [challenged

activity]’”. Id. at 5 (quoting Bass v. Parkwood Hosp., 180 F.3d

234, 242 (5th Cir. 1999)). “And, in accordance with the public

function test, a private party is viewed as a state actor if the

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plaintiff establishes that, in engaging in the challenged

conduct, the private party performed a public function that has

been ‘traditionally the exclusive prerogative of the State.” Id.

(quoting Blum, 457 U.S. at 1005.) 

Here, the basis of Larrabee’s action is that Stockton, a codefendant in his criminal trial, provided a false and perjurious

confession and/or statement that was introduced at trial and used

to obtain his conviction. The record fails to demonstrate that

Stockton, a private actor, acted under color of state law. 

Larrabee has not alleged any actions on the part of the Stockton

that would constitute action taken on behalf of the state, at the

behest of the state, or that traditionally fall within the

exclusive purview of the state. There is no indication that the

state exercised coercive power over Stockton or provided

significant encouragement to the extent that his actions would be

deemed actions by the state. Nor has Larrabee established any

nexus whatsoever between the state and the actions taken by

Stockton. The allegations in the complaint are insufficient to

elevate the actions taken by Stockton to the level of “state

action.” Lastly, there is no indication that the state

prosecuted Larrabee. Accordingly, his Section 1983 claim cannot

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lie against Stockton, a private defendant. I therefore conclude

that Larrabee has failed to plead federal question jurisdiction

under 28 U.S.C. § 1331.

B. Diversity

To the extent Larrabee alleges state law claims, I conclude

that he has failed to allege diversity jurisdiction. To

establish diversity, a complaint must allege complete diversity

of citizenship between plaintiff and defendant as well as an

amount in controversy in excess of $75,000. See 28 U.S.C. §

1332. See also Straughn v. Delta Air Lines, Inc., 170 F. Supp.

2d 133, 146 (D.N.H. 2000)(citing Century Southwest Cable

Television v. CIIF Assocs., 33 F.3d 1068, 1071 (9th Cir. 1994)

(holding that where plaintiffs made no allegations in the

complaint respecting the citizenship of the defendant or the

dollar value of the amount in controversy, the district court

could not properly exercise diversity jurisdiction)). Here,

Larrabee fails to satisfy the requirements for diversity

jurisdiction. He has not alleged any amount in controversy. Nor

has he sufficiently alleged diversity of citizenship between the

parties. The complaint alleges that Larrabee is incarcerated in

Pennsylvania but fails to allege that he and Stockton are

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citizens of different states. I therefore conclude that Larrabee

has failed to plead diversity jurisdiction under 28 U.S.C. §

1332.

Conclusion

For the reasons stated above, I conclude that Larrabee has

failed to invoke this Court’s subject matter jurisdiction. 

Accordingly, I recommend that the complaint be dismissed. 

If this recommendation is approved, the claims as identified

in this report and recommendation, 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,

plaintiff must do so by filing an objection within ten (10) days

of receipt of this report and recommendation, or by properly

moving 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 28 U.S.C. §

636(b)(1); Unauthorized Practice of Law Committee v. Gordon, 979

F.2d 11, 13-14 (1st Cir. 1992); United States v. Valencia-Copete,

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792 F.2d 4, 6 (1st Cir. 1986).

______________________________

James R. Muirhead

United States Magistrate Judge

Date: December 6, 2006

cc: Kevin D. Larrabee, pro se

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