1Leasha is named as a plaintiff in this case. Leasha is the

deceased dog of David Veale. Because a deceased dog cannot be a

plaintiff in a federal civil action, the complaint will be

considered to have been filed only by David Veale for all

purposes.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

David T. Veale

Leasha Veale

v. Civil No. 06-cv-419-PB

Robert T. Furness, DVM

Apple Tree Animal Hospital

REPORT AND RECOMMENDATION

Before the Court is David Veale’s complaint against

veterinarian Robert Furness and the Apple Tree Animal Hospital,

alleging state and federal constitutional violations, as well as

state tort claims, arising out of the death of Veale’s dog,

Leasha.1 As Veale is proceeding pro se and in forma pauperis,

the matter is before the Court for preliminary review to

determine whether, among other things, it states any claim upon

which relief might be granted and whether it properly invokes the

subject matter jurisdiction of this Court. See United States

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2

District Court for the District of New Hampshire Local Rule

(“LR”) 4.3(d)(1)(B). 

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).

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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).

Background

David Veale, a Vermont resident, claims that on November 6,

2003, Robert Furness, a veterinarian in New Hampshire, euthanized

Veale’s dog without Veale’s knowledge or consent. Veale alleges

that the dog was mentally and physically healthy when it was

wrongfully brought to Furness’ veterinary practice, and that

Furness subsequently euthanized the dog. Veale alleges that the

euthanization of his dog was unnecessary and wrongful. 

Veale alleges that as a result of Furness’ actions, he was

improperly deprived of his property and the relationship he

anticipated with his dog for the remainder of the dog’s life. 

Without explanation, Veale also alleges that as a result of the

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2To the extent Veale alleges an intentional tort, I find

that the action is properly identified as the intentional

destruction of property.

4

death of his dog, Veale lost relationships with his immediate

family members, including his parents. Veale alleges that

Furness and his veterinary practice are liable for damages under

a variety of state tort theories as well as under the state and

federal constitutions. Specifically, Veale alleges claims of

negligence, malpractice, wrongful death,2 and violations of the

state and federal constitution.

Discussion

1. State Tort Claims

To bring a civil action within the court’s subject matter

jurisdiction, a plaintiff must allege that his action either

involves a federal question, or involves citizens from different

states and an amount in controversy in excess of $75,000. See 28

U.S.C. §§ 1331 & 1332. Here, Veale has alleged a number of state

torts against Furness. Reading the complaint indulgently, as I

must, I find that Veale has alleged that Furness had a duty not

to euthanize Veale’s dog unnecessarily and without Veale’s

permission, and that Furness did in fact euthanize the dog

unnecessarily and without Veale’s knowledge or consent. Veale

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5

claims that Furness’ wrongful acts were both intentional and

negligent. To the extent that these claims are actionable, the

cause of action arises in New Hampshire tort law. These claims

invoke the diversity jurisdiction of this Court as Veale and

Furness are domiciled in different states, and Veale alleges an

amount in controversy in excess of $75,000. Accordingly, without

comment on the merits of these claims, I will direct that they be

served against the defendants in an Order issued simultaneously

with this Report and Recommendation.

2. Constitutional Claims

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 his federal civil rights by individual defendants

must establish that (i) the defendants deprived plaintiff of a

right secured by the Constitution or laws of the United States,

and that (ii) the defendants acted under “color of any statute,

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

Territory of the District of Columbia.” 42 U.S.C. § 1983; see

Andresen v. Diorio, 349 F.3d 8, 13 (1st Cir. 2003). State action

is also an essential prerequisite to a finding of a violation of

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3Because I find that Veale has not alleged state action,

there is no reason to delve into an analysis of the validity of

the constitutional claims alleged.

6

the New Hampshire Constitution. HippoPress, LLC v. SMG, 150 N.H.

304, 308 (2003) (citations omitted). 

Veale claims that his rights under the New Hampshire and

United States Constitutions have been violated by Furness’

actions. However, Veale has only alleged that Furness, a private

veterinarian, improperly euthanized Veale’s dog. Veale has not

alleged any facts indicating that Furness was acting under the

authority or color of state law, or that he could in any way be

considered to be a state actor.3 Accordingly, I find that the

federal and state constitutional claims against Furness and the

Apple Tree Animal Hospital do not invoke the subject matter

jurisdiction of this Court and I recommend that those claims be

dismissed from this action. See Fed. R. Civ. P. 12(h)(3); LR

4.3(d)(1)(B)(i).

Conclusion

In an Order issued simultaneously with this Report and

Recommendation, I direct that the diversity action claims

alleging that the defendants committed torts against Veale be

served on Furness and the Apple Tree Animal Hospital. I

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7

recommend that the constitutional claims be dismissed from this

action.

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: January 5, 2007

cc: David T. Veale, pro se

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