UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Carlos Lopez

v. Civil No. 06-cv-305-PB

Somersworth Police Department, et al.

O R D E R

Carlos Lopez, a federal prison inmate proceeding pro se and

in forma pauperis, filed a complaint (document no. 1) in this

Court against the Somersworth Police Department (“SPD”) alleging

that members of the SPD violated Lopez’s rights under New

Hampshire’s Right to Know Law, N.H. Rev. Stat. Ann. (“RSA”) 91-

A:1, et seq. The matter initially came before me for preliminary

review to determine, among other things, whether the complaint

invoked the subject matter jurisdiction of this Court. See

United States District Court for the District of New Hampshire

Local Rule (“LR”) 4.3(d)(2). After reviewing the complaint and

attachments filed by Lopez, I determined that Lopez had not, at

that time, properly invoked the subject matter jurisdiction of

this Court, and I therefore recommended that Lopez’s action be 

Case 1:06-cv-00305-PB Document 7 Filed 12/05/06 Page 1 of 9
1Lopez’s motion to amend does not strictly comply with LR

15.1 which states:

(a) A party who moves to amend a filing shall (i) 

attach the proposed amended filing to the motion to 

amend, (ii) identify in the motion or a supporting 

memorandum any new factual allegations, legal 

claims, or parties, and (iii) explain why any new 

allegations, claims, or parties were not included 

in the original filing.

(b) Any amendment to a pleading, whether filed as a 

matter of course or upon a motion to amend, shall 

reproduce the entire filing as amended and may not 

incorporate any prior filing by reference, except 

by leave of court.

However, because Lopez is proceeding pro se, I will accept the

amendment and consider the complaint (document no. 1) and the

motion to amend (document no. 6), in the aggregate to comprise

the complaint in this matter.

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dismissed in a Report and Recommendation issued November 13, 2006

(document no. 4). 

Lopez now seeks to amend his complaint (document no. 6).1

My recommendation of dismissal was based on the fact that Lopez,

in his original complaint, alleged neither a dispute arising

under federal law that would trigger the federal question

jurisdiction of this Court under 28 U.S.C. § 1331, nor that the

matter was properly before the Court as a diversity action under

28 U.S.C. § 1332, as the complaint did not specifically allege an

amount in controversy in excess of $75,000, as required by that

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2Lopez’s complaint does allege diversity of citizenship. 

According to the complaint, Lopez’s last domicile prior to his

incarceration was in Massachusetts, and the defendants to this

action is located in New Hampshire. See 28 U.S.C. § 1332(a).

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statute. 28 U.S.C. § 1332(b).2 In fact, Lopez alleged damages

of only $450. Lopez has now amended his complaint to allege

damages in the amount of $75,450. Because I find that Lopez’s

complaint, as amended, properly invokes the diversity

jurisdiction of this Court, I will allow the complaint to be

served at this time.

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

magistrate judge is directed to conduct a preliminary review and

to prepare a report and recommendation determining whether the

complaint or any portion thereof should be dismissed because:

(i) the allegation of poverty is untrue, the 

action is frivolous, malicious, or fails to state 

a claim upon which relief may be granted, or seeks 

monetary relief from a defendant who is immune 

from such relief under 28 U.S.C. § 1915A(b); or

(ii) it fails to establish subject matter 

jurisdiction under Fed. R. Civ. P. 12(b)(1).

LR 4.3(d)(2). In conducting the preliminary review, the Court

construes pro se pleadings liberally. See Ayala Serrano v.

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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).

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

Carlos Lopez is a federal prisoner incarcerated at the

Federal Correctional Institute located at Fort Dix, New Jersey. 

Lopez was incarcerated pursuant to his conviction on federal drug

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and firearms offenses. Lopez alleges that he and other

defendants and witnesses in his case were investigated,

surveilled, and arrested by the SPD. 

On September 7, 2005, Lopez made a request pursuant to the

New Hampshire Right to Know Act, RSA 91-A:1, et seq., for all of

the records in the possession of the SPD regarding the

investigation, surveillance, arrest and prosecution of his case,

or cases of the codefendants and witnesses relevant to his own

case. Lopez’s request was specific and cited the relevant state

statute authorizing the release of public documents. Receiving

no response, Lopez reiterated his request on October 3, 2005. 

Again, Lopez received no response. On November 7, 2005, Lopez

contacted the Dover District Court requesting an order directing

the SPD to comply with his information request. Lopez received

no response from the Court and, when he inquired as to the status

of his case on December 27, 2005, was told that nothing had been

docketed regarding his request. Lopez then contacted the

Strafford County Superior Court on January 12, 2006, but that

Court never responded and Lopez asserts that no case relevant to

this action was ever docketed in that Court. 

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On July 12, 2006, Lopez renewed his request to the SPD via

certified mail. On July 18, 2006, the return receipt for his

request was signed by Karen Cantrell at the SPD. As of the time

he filed this action, however, Lopez had not received any

response from the SPD.

Discussion

1. State Law Claim Based on RSA 91-A:1

New Hampshire’s Right to Know law is intended to “ensure

both the greatest possible public access to the actions,

discussions and records of all public bodies, and their

accountability to the people.” RSA 91-A:1. The Right to Know

law provides a cause of action against a body or agency, or

employee or member thereof, to provide records that fall under

the purview of the statute, provided that the Court finds that a

lawsuit was necessary to obtain the records in question. RSA 91-

A:8. Here, Lopez has described numerous attempts to obtain the

records he seeks through appropriate channels. Because Lopez has

not received any response, it is reasonable for him to file suit

against the SPD to get the documents he seeks. Accordingly, I

find that Lopez can state a cause of action under RSA 91-A:8

against defendant SPD. 

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3If Lopez’s assertion of a sufficient amount in controversy

is challenged by the defendant in this matter, Lopez will have

the burden to allege, with particularity, facts indicating that

“it is not a legal certainty that the claim involves less than

the jurisdictional amount.” Dep’t of Recreation, 942 F.2d at 88.

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2. Amended Amount in Controversy

“The general federal rule has long been to decide what the

amount in controversy is from the complaint itself, unless it

appears or is in some way shown that the amount stated in the

complaint is not claimed in good faith.” Horton v. Liberty Mut.

Ins. Co., 367 U.S. 348, 353 (1961) (internal citations omitted). 

The standard for determining a lack of good faith in a claimed

amount is that it “must appear to a legal certainty that the

claim is really for less than the jurisdictional amount to

justify dismissal.” Id. (internal citations omitted). Unless a

plaintiff’s allegation that the dispute exceeds the

jurisdictional minimum is challenged, a general allegation

suffices to support diversity jurisdiction. Dep’t of Recreation

& Sports of P.R. v. World Boxing Ass’n, 942 F.2d 84, 88 (1st Cir.

1991) (citing Gibbs v. Buck, 307 U.S. 66, 72 (1939)).3

Lopez’s complaint baldly alleges an amount in excess of

$75,000. While this amount may ultimately be subject to

challenge to determine whether or not the assertion was made in

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good faith based on actual asserted damages, or whether it was

stated only to obtain the jurisdiction of this Court, Lopez’s

assertion, for purposes of preliminary review, suffices to invoke

this Court’s diversity jurisdiction under § 1332.

Conclusion

For the reasons stated herein, and without further comment

on the merits of the complaint, and, in light of the additional

allegations in Lopez’s amended complaint, I direct that this

action proceed against the Somersworth Police Department and

withdraw my previously issued Report and Recommendation (document

no. 4). Lopez has filed an objection to that Report and

Recommendation (document no. 5) which is therefore moot.

My review of the file indicates that the plaintiff has

completed summons forms for the SPD. The Clerk’s Office is

directed to issue the summons against the defendant SPD, a the

Mayor or one of the Aldermen of the City of Somersworth and the

Somersworth city clerk. I further direct the Clerk’s office to

forward to the United States Marshal for the District of New

Hampshire (the “U.S. Marshal’s office”) the summons and copies of

the complaint (document nos. 1 & 6), and this Order. Upon

receipt of the necessary documentation, the U.S. Marshal’s office

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shall effect service upon the defendant SPD, the Mayor or an 

Alderman of the City of Somersworth, and the Somersworth city

clerk. See Fed. R. Civ. P. 4(j) (authorizing service upon a

municipal organization to be effected in the manner prescribed by

state law); RSA 510:10. 

The defendant is instructed to answer or otherwise plead

within twenty (20) days of service. See Fed. R. Civ. P.

12(a)(1)(A). 

Plaintiff is instructed that all future pleadings, written

motions, notices, or similar papers shall be served directly on 

the Defendants by delivering or mailing the materials to them or

their attorney(s), pursuant to Fed. R. Civ. P. 5(b). 

SO ORDERED.

 ________________________________

James R. Muirhead

United States Magistrate Judge

Date: December 5, 2006

cc: Carlos Lopez, pro se

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