UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Larry Lemay

v. Civil No. 08-cv-286-SM

State of New Hampshire, et al.

REPORT AND RECOMMENDATION

Before the Court is Larry Lemay, who has filed a complaint

(document no. 1) alleging that his rights were violated by the

defendants when he was convicted of speeding five times in the

State of New Hampshire. Because Lemay is proceeding pro se and

in forma pauperis, the matter is before me for preliminary review

to determine, among other things, whether Lemay has stated any

claim upon which relief might be granted. See United States

District Court 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. LR 4.3(d)(1). In

conducting the preliminary review, the Court construes pro se

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pleadings liberally, however inartfully pleaded. See Erickson v.

Pardus, 551 U.S. 89, ___, 127 S. Ct. 2197, 2200 (2007) (following

Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines v. Kerner,

404 U.S. 519, 520-21 (1972) 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.” See Castro v.

United States, 540 U.S. 375, 381 (2003) (noting that courts may

construe pro se pleadings so as to avoid inappropriately

stringent rules and unnecessary dismissals of claims); Ahmed v.

Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). All of the

factual assertions made by a pro se plaintiff and inferences

reasonably drawn therefrom must be accepted as true. See id.

This review ensures that pro se pleadings are given fair and

meaningful consideration.

Background

Between January 22, 2006 and the date this action was filed,

Larry Lemay was pulled over and cited for speeding five times on

the roads of New Hampshire. On each occasion, Lemay pleaded not

guilty to the speeding violation in the state district court, and

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then filed a pretrial discovery request seeking documentation of

engineering surveys and traffic investigations used to justify

the posted speed limits he was charged with exceeding. In each

instance, the state official prosecuting the matter stated that

they were not in possession of such information, and that Lemay

would therefore have to obtain it elsewhere. Lemay, apparently,

never obtained the information sought, and was convicted of

speeding in each case. The complaint does not state whether or

not Lemay litigated the speeding convictions beyond the state

district court verdict. 

Here, Lemay alleges that the speed limits he was convicted

of violating are unconstitutional because they are arbitrary and

capricious unless based on traffic and engineering surveys and

investigations required by New Hampshire law. In addition to

damages, Lemay seeks an Order from this Court striking his five

state court convictions for speeding, as well as an order

directing the State of New Hampshire and each municipality within

the state to perform engineering and traffic surveys for all

posted speed limits on all public roadways in New Hampshire. 

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Discussion

As stated above, Lemay has not divulged the status of his

speeding convictions in the state courts. It is therefore not

certain whether he has taken an appeal of any of the convictions

to the New Hampshire Supreme Court, whether he let the

convictions lie, or whether he is currently involved in state

court appellate or post-conviction litigation of these matters. 

In any of these circumstances, however, Lemay’s claims raise a

question, either of subject matter jurisdiction that this court

is obliged to consider and resolve sua sponte, see Healthco Int’l

v. Brandt, 136 F.3d 45, 50 n.4 (1st Cir. 1998), or of the

appropriateness of the consideration of this matter by this Court

at this time, even in the presence of subject matter

jurisdiction. 

Specifically, this Court may be precluded from exercising

jurisdiction over this action under the Rooker-Feldman doctrine,

which precludes “lower federal courts . . . from exercising

appellate jurisdiction over final state-court judgments.” Lance

v. Dennis, 546 U.S. 459, ___, 126 S.Ct. 1198, 1201 (2006)

(affirming principles established in D.C. Ct. App. v. Feldman,

460 U.S. 462, 476 (1983) and Rooker v. Fid. Trust Co., 263 U.S.

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413, 416 (1923)). If Rooker-Feldman does not bar this action,

this Court is precluded from considering the matter by the

Younger abstention doctrine, which provides that federal courts

should, in certain circumstances, present here, abstain from

entertaining cases involving issues that are the subject of

ongoing state judicial proceedings. Younger v. Harris, 401 U.S.

37, 43-44 (1971).

I. Rooker-Feldman

The Rooker-Feldman doctrine applies to cases where “the

losing party in state court filed suit in federal court after the

state proceedings ended, complaining of an injury caused by the

state-court judgment and seeking review and rejection of that

judgment.” Galibois v. Fisher, 174 Fed. Appx. 579, 580 (1st Cir.

2006) (citing Lance v. Dennis, 546 U.S. 459, 466 (2006) and Exxon

Mobil Corp. v. Saudi Basic Indus., 544 U.S. 280, 291 (2005)). 

Rooker-Feldman further forecloses federal court jurisdiction over

claims that are inextricably intertwined with claims already

adjudicated in a state court proceeding. See Mills v. Harmon

Law Offices, 344 F.3d 42, 44 (1st Cir. 2003); Wilson v. Shumway,

264 F.3d 120, 125 (1st Cir. 2001); Sheehan v. Marr, 207 F.3d 35,

39-40 & n.4 (1st Cir. 2000); Wang v. N.H. Bd. of Reg’n in Med.,

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55 F.3d 698, 703 (1st Cir. 1995). “A federal claim is

inextricably intertwined with the state court claims if the

federal claim succeeds only to the extent that the state court

wrongly decided the issues before it.” Sheehan, 207 F.3d at 40

(internal citations omitted). 

Applying the Rooker-Feldman doctrine to this case, I find

that the plaintiff’s claims derive from the same facts,

circumstances, and legal issues that were at issue in the

speeding proceedings before the state district courts. In

addition to the fact that Lemay has specifically requested that

this Court overturn the findings and orders of those courts, to

decide the claims themselves, this Court must re-examine the

decisions of the state courts that heard this matter. 

Specifically, this Court would delve into the propriety of

discovery and evidentiary rulings and the state courts’

application of the facts before them to New Hampshire law, in

addition to the correctness of the courts’ final decisions. 

Lemay asks this Court to, in essence, pass judgment on the state

court’s rulings and decisions as though this Court were an

appropriate appellate venue in this matter, which it is not. 

Additionally, to the extent that Lemay’s constitutional challenge

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to the imposition of speed limits by the state has not been

litigated in the state courts, I find, given the facts asserted

in the complaint, and the relief Lemay seeks, that this issue is

inextricably intertwined with those decided by the state courts. 

Accordingly, to the extent that the state courts have entered

final judgment in the speeding cases, Rooker-Feldman applies, and

deprives this Court of jurisdiction over this action. In the

event that final judgements have entered in the state cases, I

recommend the complaint be dismissed on that basis. 

II. Younger Abstention

My application of the Rooker-Feldman doctrine in this matter

presumes that the state courts have entered final judgment in the

speeding cases. Lemay makes no reference to appealing these

matters to either the New Hampshire Supreme Court or the United

States Supreme Court. Further, I can find no published opinion

deciding an appeal of these matters. Should my presumption be

incorrect, however, and the matters are ongoing, either in the

appellate court or because an appeal has not been taken in a

court with jurisdiction, and such an appeal may still be filed, I

would still recommend dismissal as I find this Court should, in

those circumstances, apply the abstention doctrine set forth in

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Younger, 401 U.S. at 43-44, and abstain from entertaining this

matter. See Huffman v. Pursue, Ltd., 420 U.S. 592, 603-05 (1975)

(discussing that Younger is grounded in principles of comity and

noting that federal courts should not, in certain circumstances,

interfere with state courts).

The Younger abstention principle provides that federal

courts should abstain from entertaining cases involving issues

that are the subject of currently pending state judicial

proceedings when: (1) there is an ongoing state proceeding which

is judicial in nature; (2) important state interests are

involved; and (3) the plaintiff will have an adequate opportunity

in the state proceeding to raise the constitutional challenges

presented by the federal law suit. Younger, 401 U.S. at 43-44;

Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S.

423, 431-32 (1982) (applying the abstention defined in Younger, a

criminal case, to civil cases); Brooks v. N.H. Sup. Ct., 80 F.3d

633, 638 (1st Cir. 1996). “Except in the most extraordinary

cases, a federal court must presume that state courts, consistent

with the imperatives of the Supremacy Clause, see U.S. Const.

art. VI, are fully competent to adjudicate federal constitutional

and statutory claims properly presented by the parties.” Casa

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Marie, Inc. v. Super. Ct., 988 F.2d 252, 262 (1st Cir. 1993). 

Federal court intervention can be countenanced only where a

plaintiff can show there is no opportunity to raise the federal

issues in a state court, a state statute under attack is

“flagrantly and patently violative of express constitutional

prohibitions in every clause,” or plaintiffs can show “bad faith, 

harassment, or any other unusual circumstances that would call

for equitable relief.” Younger 401 U.S. at 53-54. 

There is no doubt that the conduct of drivers on New

Hampshire roadways is an important matter of state interest, as

the State has dedicated substantial legislative efforts to the

subject. See N.H. Rev. Stat. Ann. § 259, et seq. Further, none

of the facts Lemay alleges suggest that he has been denied an

adequate opportunity in the state courts to adjudicate all of the

issues raised in this action, including his federal

constitutional claim. Lemay makes no assertion stating or

otherwise implying that he was unable to fully litigate the

propriety of the state court decisions in the state court system. 

The state courts did not deny Lemay the opportunity to present

his arguments; they simply denied him the relief he sought. In

the event that a state court case is ongoing, therefore, I

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recommend dismissal of this case based on the Younger abstention

doctrine.

Conclusion

As explained fully above, I recommend that this matter be

dismissed, as this Court either lacks jurisdiction to entertain

this action, or should abstain from doing so, even in the

presence of subject matter jurisdiction. 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 26,2009

cc: Larry Lemay, pro se

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