` UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Edmund D. LaChance, Jr.

v. Civil No. 07-cv-121-PB

Jessica C. Millette, and

New Hampshire Attorney General

Kelly Ayotte

REPORT AND RECOMMENDATION

Before the Court is Edmund LaChance’s complaint (document

no. 1) brought pursuant to 42 U.S.C. § 1983, alleging that the

defendants have violated his federal constitutional rights. The

matter is before me to determine, among other things, whether the

complaint states any claim upon which relief might be granted. 

See United States District Court for the District of New

Hampshire Local Rule (“LR”) 4.3(d)(2); 28 U.S.C. § 1915A(a). 

Because I find that LaChance has not stated any claim upon which

relief might be granted, I recommend that the complaint be

dismissed.

Standard of Review

Under this Court’s local rules, when an incarcerated

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

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magistrate judge is directed to conduct a preliminary review. LR

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

construes pro se pleadings liberally, however inartfully pleaded. 

See Erickson v. Pardus, ___ U.S. ___, 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)

(same). 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

LaChance, twice convicted of rape, is an inmate incarcerated

under the authority of the Massachusetts Department of

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1LaChance does not believe this information was ever

utilized by Millette.

3

Corrections (“MDOC”). In February or March of 2003, LaChance,

who had been serving time in Massachusetts, was transferred by

MDOC officials to the New Hampshire State Prison (“NHSP”),

pursuant to an interstate compact in place authorizing the MDOC

to transfer and house their prisoners in other states. See Mass.

Gen. Laws Ann. ch. 125, § 1-2 (2002). 

While LaChance was incarcerated at the NHSP, he became

acquainted with, and enamored of, a female corrections officer

named Jessica Millette. LaChance alleges that he and Millette

had numerous conversations, during which they discussed, among

other things, a picture that Millette’s daughter had made for her

on Mother’s Day, Millette’s partying and drinking habits, the

contact information for someone Millette could call to purchase

cocaine for personal use,1 the identity of Millette’s best

friend, nightclubs, Millette’s prior arrest for driving while

intoxicated, and the nature of LaChance’s relationship with a

woman on his visiting list. LaChance claims that, despite the

friendly nature of their conversations, the relationship between

himself and Millette was not inappropriately personal. LaChance

also alleges that on several occasions he professed his

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attraction to and romantic interest in Millette, and that she did

not ask him to stop or otherwise communicate to him that his

statements were undesired, but instead smiled and seemed to enjoy

it when he talked about his feelings for her. 

LaChance states that because of his friendly relationship

with Millette, he became protective of her, and engaged in a

number of altercations with both guards and other prisoners when

he heard them speak disrespectfully to or about Millette. When

LaChance received disciplinary sanctions as a result of his

actions, he alleges that Millette disposed of his extra duty

sanctions, left her post to visit him in segregation, and

provided him with extra food and linens in the segregation unit.

In July of 2004, LaChance was transferred back to the MDOC. 

Seven months later, in February of 2005, LaChance sent Millette a

letter on stationery that appeared to be from the United States

Marshal’s office. LaChance admits that he sent the letter in

this guise so that it would bypass security screening at the

NHSP. The letter contained further professions of LaChance’s

romantic interest in Millette and his desire for a romantic

relationship with her. The letter also included advice to

Millette that she be careful about the inmates with whom she got

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romantically involved, as some inmates were discussing having had

romantic relations with her. LaChance promised to remain

discreet in their relationship, as he was aware that she needed

to keep her job for both her own well-being and that of her

daughter. LaChance stated a desire to become a “huge part” of

Millette’s life and her daughter’s life. Finally, the letter

promised that, if Millette failed to affirmatively return his

affections, and chose instead not to respond to the letter, that

he would make no further attempt to contact her and would

consider the possibility of a relationship with her closed. 

Millette did not respond to the letter. She did, however,

give a copy of the letter to her superiors at the NHSP. Despite

LaChance’s promise not to pursue Millete if she did not respond

to his letter and invite further contact from him, LaChance did

make several further efforts to contact Millette directly and

indirectly. 

In August of 2004, LaChance had his mother call Millette at

the prison. Millette asked for a return number, saying that she

would return the call outside of work hours, but she never called

LaChance’s mother.

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 LaChance also asked his brother to do an internet search to

locate Millette’s home address. When his brother was

unsuccessful in locating the address, LaChance paid someone else

to conduct an internet search, and found an address he believed

belonged to Millette. In July of 2005, LaChance had a dozen

roses sent to that address and sent another letter to Millette at

that address. LaChance states that because the address was

incorrect, Millette never received the roses or the second

letter. 

In October of 2005, LaChance received a letter from NHSP

Major Ross Cunningham advising LaChance not to make any further

effort to contact Millette. Cunningham warned that any future

efforts in that vein would be reported to MDOC authorities. 

LaChance learned that, although he had not succeeded in making

contact with Millette since the letter he sent to her in February

of 2005, the MDOC officials had been monitoring all of his

incoming and outgoing mail and phone communications, and

therefore were aware of all of LaChance’s attempts to locate and

contact Millette. On November 13, 2005, MDOC officials advised

LaChance that he was not to contact Millette, as she wanted no

further relationship with him.

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2The details of this litigation are not reported in the

complaint and are not, in any event, relevant to my

recommendation in this matter.

7

LaChance claims that in April of 2006, he was involved in

litigation against MDOC officials for retaliating against him.2

LaChance alleges that the MDOC officials used the letters sent to

Millette as evidence against him in that litigation. LaChance

states that he became extremely angry at Millette for providing

information to the MDOC officials. He expressed his anger by

sending letters to the Governor of New Hampshire and two New

Hampshire newspapers, which stated that Millette had been

arrested for driving while intoxicated and had engaged in

improper conduct of an intimate nature with inmates at the NHSP. 

LaChance also sent copies of the letters to Millette and

Cunningham.

In response to those letters, Millette applied for and

received a temporary ex parte restraining order against LaChance

in the Concord District Court (“CDC”) on May 8, 2006, claiming he

had stalked her, in violation of N.H. Rev. Stat. Ann. (“RSA”)

633:3-a. The order prohibited LaChance from making direct or

indirect contact with either Millette or her daughter. A hearing

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to determine whether or not a permanent order should issue was

scheduled for June 6, 2006. 

Prior to the June 6 hearing, LaChance filed pre-hearing

motions in the CDC. In order to avoid contact with Millette,

LaChance sent extra copies of the motions to the CDC for

forwarding on to Millette in advance of the hearing. When she

received those motions, Millette contacted MDOC officials and

advised them that LaChance had violated the May 8 restraining

order. As a result, LaChance, who was already incarcerated in a

high security “supermax” correctional facility, was placed into

“ultramax” status within that institution, subjecting him to both

heightened monitoring by prison investigators and decreased human

contact. When the MDOC officials were made aware that the court,

and not LaChance himself, had forwarded the motions to Millette,

he was removed from “ultramax” status, although he was still

subjected to heightened monitoring of his mail. After the June

6, 2006 hearing, at which LaChance appeared by videoconference, a

permanent order was issued prohibiting him from having any direct

or indirect contact with Millette or her daughter for a period of

one year. 

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342 U.S.C. § 1983 provides that:

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 . . . .

9

On June 23, 2006, LaChance filed a grievance against

Millette with the NHSP, complaining that, in retaliation for his

letters to the Governor and the newspapers, Millette sought the

restraining order against him, and then falsely informed MDOC

officials that LaChance had contacted her. On June 24, 2006,

Millette filed a motion in the CDC seeking a finding that

LaChance had violated the restraining order by filing the

grievance. Millette’s motion was denied.

Discussion

I. Section 1983 Claim

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal constitutional

or statutory law. See 42 U.S.C. § 19833; City of Okla. City v.

Tuttle, 471 U.S. 808, 829 (1985); Wilson v. Town of Mendon, 294

F.3d 1, 6 (1st Cir. 2002). “To state a claim under § 1983, a

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plaintiff must make two showings: the existence of a federal

constitutional or statutory right; and a deprivation of that

right by a person acting under color of state law.” BarriosVelazquez v. Asociacion de Empleados del Estado Libre Asociado,

84 F.3d 489, 491 (1st Cir. 1996). This does not mean, however,

that every action taken by a person who happens to be a state

employee is attributable to the state or undertaken under color

of state law. See Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.

1995). A private action by a state employee taken outside the

line of duty, “and unaided by any indicia of actual or ostensible

state authority, is not conduct occurring under color of state

law.” Id. at 986-87. To determine whether an action is taken

under color of state law for purposes of § 1983, the Court

examines whether the challenged conduct is related in a

meaningful way either to the officer’s governmental status or to

the performance of her duties. Id. at 987. 

LaChance alleges that Millette, acting under color of state

law, violated his federal constitutional rights by (1) seeking a

restraining order against him, (2) falsely notifying MDOC

officials that he had contacted her in violation of the May 8

temporary restraining order, and (3) petitioning the CDC to find

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that LaChance had violated the June 6 restraining order when he

filed a grievance against her at the NHSP. I find that all of

these actions, as alleged, were taken by Millette in her capacity

as a private individual, rather than in her capacity as a state

actor. She individually applied for protection for herself and

her daughter in the CDC. There is no indication that the state

in any way authorized that action or undertook the action on

Millette’s behalf, or otherwise participated in the action. 

Millette’s communication with the CDC regarding an alleged

violation of the restraining order was, similarly, taken in her

capacity as a private individual, even though the motion was made

in response to an action LaChance took against her in her

capacity as a state employee. Had Millette challenged the

grievance administratively with her employer, the state of New

Hampshire, rather than in a private action before the CDC, such a

response would have been made as a state actor.

LaChance’s third allegation in support of his claim against

Millette is that she contacted MDOC officials and advised them

that LaChance had violated a court order. Again, there is no

indication that this act was taken in her capacity as a state

employee, or under the color of state authority. Millette is

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alleged, simply, to have provided information to the MDOC

regarding LaChance’s allegedly illegal conduct in a matter

between himself and Millette, as any private citizen could have

done. Neither the fact of Millette’s employment by the state of

New Hampshire, nor the fact that Millette’s state employment was

the source of her initial contact with LaChance, has the power to

transform otherwise private conduct into state action. I find

that LaChance has not alleged any conduct by Millette that could

be construed, however generously I read the complaint, as state

action. Although state action is actionable under § 1983 if it

violates constitutional rights, the United States Constitution

“erects no shield against merely private conduct, however . . .

wrongful.” Blum v. Yarketsky, 457 U.S. 991, 1002 (1981). 

Accordingly, LaChance’s claim under § 1983 fails, and I recommend

that the claim, and Millette, be dismissed from this action.

II. Constitutionality of Stalking Statute

LaChance alleges that New Hampshire’s stalking statute, RSA

633:3-a, is unconstitutional because it is vague and overbroad,

and because it impermissibly shifts the burden of proof to the

accused. LaChance names the Attorney General of New Hampshire as

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4LaChance filed a petition for a writ of habeas corpus in

this Court pursuant to 28 U.S.C. § 2254, alleging that the June 6

restraining order was improperly issued against him. See

LaChance v. N.H. Attorney Gen., Civ. No. 07-127-PB (D.N.H. Apr.

30, 2007). The habeas petition was dismissed because LaChance

was not “in custody,” as required by § 2254 to establish the

subject matter jurisdiction of this Court. See id. (Order

approving Report and Recommendations May 22, 2007).

13

the defendant to this claim, charging that her enforcement of the

statute violates his First and Fourteenth Amendment rights.4 

“Under [the] Rooker/Feldman abstention doctrine . . . a

party losing in state court is barred from seeking what in

substance would be appellate review of the state judgment in a

United States district court, based on the losing party’s claim

that the state judgment itself violates the loser’s federal

rights.” Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994)

(citing D.C. Ct. App. v. Feldman, 460 U.S. 462, 482 (1983) and

Rooker v. Fid. Trust Co., 263 U.S. 413, 416 (1923)); see also

Galibois v. Fisher, 174 Fed. Appx. 579, 580 (1st Cir. 2006)

(citing Lance v. Dennis, 546 U.S. 459, 466 (2002) and Exxon Mobil

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

the Rooker-Feldman doctrine to bar review of 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

Case 1:07-cv-00121-PB Document 9 Filed 09/20/07 Page 13 of 15
5In the habeas petition previously filed by plaintiff, see

LaChance v. N.H. Attorney Gen., Civ. No. 07-127-PB, LaChance

argued that he was denied access to New Hampshire legal materials

by the MDOC and, therefore, was denied the opportunity to

litigate the constitutionality of the stalking statute during the

restraining order proceedings in the Concord District Court, and

that he was denied a free hearing transcript which denied him the

ability to appeal the matter in the New Hampshire Supreme Court. 

While these types of arguments may be relevant to a claim for the

denial of access to the courts, a challenge to the restraining

order is not actionable here under § 1983. The proper avenue to

utilize to challenge any aspect of the issuance of the

restraining order is by direct appeal through the state court

system, and not by collateral attack on the enabling state

statute in the federal district court.

14

judgment.”). Construing the complaint liberally, it appears that

LaChance grounds his standing to challenge the stalking statute

on the fact that the June 6, 2006 restraining order was issued

against him based on the Concord District Court’s finding that

LaChance had violated the allegedly unconstitutional stalking

statute. This action, therefore, directly challenges the

legality of the restraining order issued by the state court

pursuant to RSA 633:3-a. 

In order to grant plaintiff the relief he seeks, this Court

would have to invalidate the Concord District Court’s order

issuing the restraining order.5 LaChance asks this Court to pass

judgment on the state courts’ rulings and decisions as though

this Court were an appropriate appellate venue in this matter,

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which it is not. Accordingly, as it appears that the state

courts have entered final judgment in these matters, the RookerFeldman abstention deprives this Court of jurisdiction over this

claim, and I recommend that it be dismissed from this action on

that basis.

Conclusion

For the foregoing reasons, I recommend that this action be

dismissed in its entirety. 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: September 20, 2007

cc: Edmund D. LaChance, pro se

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