1Cook’s request for emergency injunctive relief (document

no. 3) was denied as moot on April 24, 2008.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Warren Cook

v. Civil No. 08-cv-11-PB

City of Laconia

REPORT AND RECOMMENDATION

Pro se plaintiff Warren Cook brings this action, pursuant to

42 U.S.C. § 1983, alleging violations of his rights under the

First Amendment to the United States Constitution. Named as the

defendant is the City of Laconia, New Hampshire. Defendant

allegedly violated Cook’s right to separation of church and state

when it relocated a polling place from a city-owned property to a

local church during the presidential primary election held in

January 2008 (document no. 1).1 Seeking injunctive relief, Cook

requests this Court to relocate the polling place to a nonchurch

location.

The matter is before me for preliminary review to determine,

among other things, whether Cook has stated a claim upon which

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relief might be granted. See United States District Court for

the District of New Hampshire Local Rule (“LR”) 4.3(d)(2)

(authorizing the magistrate judge to preliminarily review pro se

pleadings). For the reasons stated below, I recommend that the

complaint be dismissed.

Standard of Review

In reviewing a pro se complaint, this court must construe

the pleading liberally and in favor of the pro se litigant. See

Ayala Serrano v. Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)). 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. Director of CIA, 843 F.2d 46, 49

(1st Cir. 1988). I apply this standard in reviewing Cook’s

complaint.

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Background

Cook, a presumed resident of the City of Laconia, filed this

action on January 7, 2008, one day before the presidential

primary election in New Hampshire. In a one-page complaint, he

alleges that “[t]he City of Laconia has moved its voting place

from a city-owned property to a local church in [his] ward.” The

relocation of the polling place allegedly violates his First

Amendment right to separation of church and state. Cook has not

identified his religious beliefs, if any, nor alleged any

specific governmental infringement on his beliefs. The record is

silent as to any governmental endorsement or suppression of

religion with regard to the polling place at issue. Cook has not

alleged that he has been denied any voting rights. In bringing

this action, he seeks injunctive relief, requesting this Court

“to relocate the polling place to a location not connected to any

church as we are guaranteed the right of separation of church

[and] state.”

Discussion

I. Claim Pertaining to the January 2008 Election

“‘Under Article III of the Constitution, federal courts may

adjudicate only actual, ongoing cases or controversies.’” 

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4

Johansen v. United States, 506 F.3d 65, 69 (1st Cir. 2007)

(quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477

(1990)). As the First Circuit has explained:

[t]o invoke the jurisdiction of a federal court, a

litigant must have suffered, or be threatened with, an

actual injury traceable to the defendant and likely to

be redressed by a favorable judicial decision. Article

III denies federal courts the power to decide questions

that cannot affect the rights of litigants in the case

before them, and confines them to resolving real and

substantial controversies admitting of specific relief

through a decree of a conclusive character, as

distinguished from an opinion advising what the law

would be upon a hypothetical set of facts. This caseor-controversy requirement subsists through all stages

of federal judicial proceedings, trial and appellate.

Id. (internal citations and quotations omitted). Thus, a suit

is moot if it fails to present an actual case or controversy. 

Jackson v. Coalter, 337 F.3d 74, 79 (1st Cir. 2003). 

In this action, Cook challenges the City of Laconia’s

actions of relocating a polling place from a city-owned property

to a local church. The actions allegedly occurred during the

presidential primary election and appear to pertain solely to

that election, which concluded in January 2008. As explained

above, Cook’s complaint must allege some injury to himself that

could be redressed by a favorable judicial decision. With regard

to the January 2008 election, he has not stated whether or how he

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2I liberally construe Cook’s complaint to challenge the City

of Laconia’s actions with regard to future elections. See

Independence Party v. Graham, 413 F.3d 252, 256 (2d Cir. 2005)

(“In the absence of a class action, a controversy is capable of

repetition, yet evading review where both of the following two

requirements are met: (1) the challenged action [is] in its

duration too short to be fully litigated prior to its cessation

or expiration, and (2) there [is] a reasonable expectation that

the same complaining party [will] be subjected to the same action

again.”). 

5

has been injured by the relocation of the polling place or how

any such injury would be redressed by the remedy he seeks. I 

therefore conclude that he has not presented an actual case or

controversy for this Court to resolve with regard his claim as it

pertains to the January 2008 polling location. Accordingly, I

recommend that this claim be dismissed for lack of subject matter

jurisdiction.

II. Claim Pertaining to Future Elections

To the extent Cook challenges the City of Laconia’s use of a

church as a polling location for future elections2, I conclude

that he has failed to allege sufficient predicate facts to state

a cognizable First Amendment claim. Construed liberally, the

complaint invokes the Establishment Clause of the First Amendment

by alleging that the City of Laconia’s actions violate Cook’s

“right of separation of church and state.”

“The Establishment Clause of the First Amendment proscribes 

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governmental involvement in religion, either to advance or

inhibit its practice in any form.” Bader v. Wren, 532 F. Supp.

2d 308, 312-13 (D.N.H. 2008) (citing U.S. Const., amend. I

(providing “Congress shall make no law respecting an

establishment of religion”)). It is made applicable to the

states through the Fourteenth Amendment. See id. (citing Lee v.

Weisman, 505 U.S. 577, 580 (1992)). “The Establishment Clause,

at the very least, prohibits government from appearing to take a

position on questions of religious belief or from ‘making

adherence to a religion relevant in any way to a person’s

standing in the political community.’” County of Allegheny v.

ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 594 (1989)

(quoting Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor,

J., concurring)). It commands a separation of church and state. 

See Cutter v. Wilkinson, 544 U.S. 709, 719 (2005). “In other

words, the government cannot endorse or suppress religion,

however tangentially.” Bader, 532 F. Supp. 2d at 312-13 (citing

County of Allegheny, 492 U.S. at 591-95 (reviewing the contours

of the Establishment Clause’s limit on governmental action)). 

Where, as here, challenges to governmental action allegedly

violate the Establishment Clause, courts are required to make

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3The effects test is further broken down into subparts that

ask whether the challenged action results in governmental

indoctrination, determines its recipients by reference to

religion, or creates excessive entanglement with religion. See

DeStefano, 247 F.3d at 406 (citing Mitchell v. Helms, 530 U.S.

793, 120 S.Ct. 2530, 2559 (2000) (plurality opinion) and

Agostini, 521. U.S. at 234).

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fact-specific determinations, as follows: 

While the proscription has been difficult to translate

into “concrete rules and consistent doctrine,”

DeStefano v. Emergency Hous. Group, Inc., 247 F.3d 397,

405 (2d Cir. 2001), the Supreme Court has annunciated a

three-part test to determine whether the challenged

governmental action . . . violates the Establishment

Clause: (1) does it have a secular purpose?; (2) is

its principal or primary effect one that neither

advances nor inhibits religion?; (3) does the act avoid

excessive governmental entanglement with religion? See

Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S. Ct.

2125, 29 L. Ed. 2d 745 (1971); see also Zelman v.

Simmons-Harris, 536 U.S. 639, 668, 122 S. Ct. 2460, 153

L. Ed. 2d 604 (2002) (reaffirming the Lemon test as a

“central tool in our analysis of cases in this area”)

(O’Connor, J., concurring)).

The second and third questions have been fused into

one, because the same evidence often answers both

questions. See Zelman, 536 U.S. at 668-69 (“the degree

of entanglement has implications for whether a statue

advances or inhibits religion”); Agostini v. Felton,

521 U.S. 203, 232, 117 S. Ct.. 1997, 138 L. Ed. 2d 391

(1997) (combining excessive entanglement into the

effects inquiry). The analysis, therefore, assesses

whether the challenged governmental act has a secular

purpose and whether it affects religion in some way.3

If the challenged act fails any part of this test, then

it violates the Establishment Clause. See Lemon, 403

U.S. at 613-14.

Bader, 532 F. Supp. 2d at 313. 

Case 1:08-cv-00011-PB Document 5 Filed 06/05/08 Page 7 of 9
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In this action, Cook concedes that the establishment of the

polling place in a church was for the secular purpose of

providing a place to vote. Nothing in the record suggests that

the principal or primary effect of the polling place in a church

advances or inhibits religion, or that Cook was unable to enter

the polling place because of his religious beliefs. In addition,

Cook has failed to allege any predicate facts suggesting that the

challenged actions foster an “excessive government entanglement

with religion.” See Otero v. State Election Bd., 975 F.2d 738,

740-41 (10th Cir. 1992) (rejecting atheist’s Establishment Clause

challenge to the use of a church as a polling place). Even

generously construed, his allegations fail to state a cognizable

constitutional claim of establishment or endorsement of religion. 

For the foregoing reasons, I conclude that Cook has failed to

allege sufficient predicate facts to state a cognizable First

Amendment claim against the City of Laconia with regard to the

use of a church as a polling place in future elections and,

therefore, recommend that this claim be dismissed for failure to

state a claim upon which relief may be granted.

Conclusion

For the reasons stated above, I recommend that the complaint

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be dismissed.

If this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for all

purposes to be the claims raised in the complaint. If the

plaintiff disagrees with the identification of the claims herein,

plaintiff must do so by filing an objection within ten (10) days

of receipt of this report and recommendation, or by properly

moving to amend the complaint. 

Any further 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 28 U.S.C. '

636(b)(1); Unauthorized Practice of Law Committee 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: June 5, 2008

cc: Warren Cook, pro se

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