UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Kevin Hall

v. Civil No. 08-cv-486-JD

Christina O’Brien

REPORT AND RECOMMENDATION

Before the Court is Kevin Hall’s damages action (document

no. 1), alleging that defendant violated his rights by acting to

deprive Hall of his interest in his late mother’s estate. As

Hall is a prisoner, the matter is before me for preliminary

review to determine, among other things, whether the complaint

states any claim upon which relief might be granted. See 28

U.S.C. § 1915A(a); United States District Court District of New

Hampshire Local Rule (“LR”) 4.3(d)(2)(A).

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. LR

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

construes pro se pleadings liberally, however inartfully pleaded. 

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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

On March 4, 2007, Hall’s mother, Aldona Ross, died suddenly

while Hall was incarcerated. Hall’s sister, Christina O’Brien,

hid the death from Hall until after she presented herself to the

Cheshire County Probate Court as an individual with an interest

in Aldona Ross’ estate, along with Douglas Ross, who is Hall and

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O’Brien’s stepfather. Hall now claims that O’Brien acted in

concert with Douglas Ross to illegally and fraudulently deprive

Hall of an interest in his mother’s estate to which he is

entitled.

Discussion

The United States Constitution “erects no shield against

merely private conduct, however discriminatory or wrongful.” 

Blum v. Yarketsky, 457 U.S. 991, 1002 (1981). A plaintiff

claiming infringement of a constitutional right 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 (ii) the defendant 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. In

relation to the second requirement, a private actor can be held

to be a state actor under only three circumstances: “(i) where

there is a sufficiently close nexus between the state and the

challenged action of the private party so that the action of the

party may be fairly treated as that of the state itself, (ii)

where the private party has exercised powers that are

‘traditionally the exclusive prerogative of the state,’ or (iii)

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where the state has exercised coercive power or has provided such

significant encouragement, either overt or covert that the action

of the private party must in law be deemed to be that of the

state.” Lewis v. Law-Yone, 813 F. Supp. 1247, 1254 (N.D. Tex.

1993) (quoting Blum, 457 U.S. at 1004); see also Jackson v.

Metro. Edison Co., 419 U.S. 345, 357 (1974). 

Hall alleges a deprivation of property without an adequate

opportunity to be heard. To the extent he attempts to raise a

civil rights claim, such a claim would arise under the Fourteenth

Amendment to the United States Constitution. Hall has not stated

any facts to allow me to infer that O’Brien was, at any time she

is alleged to have violated Hall’s constitutional rights, acting

under color of state law or could otherwise be considered to be a

state actor. Accordingly, the federal constitution does not

protect Hall from her actions. Hall has not asserted any other

basis upon which O’Brien might be liable to him in a federal

lawsuit. I recommend therefore that this action be dismissed for

failure to state a claim upon which relief might be granted.

Conclusion

For the foregoing reasons, I recommend that this action be

dismissed in its entirety, as Hall has failed to state any claim

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upon which relief might be granted. See LR 4.3(d)(2)(A). 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: April 24, 2009

cc: Kevin Hall, pro se

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