United States District Court, D. Vermont
OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS (Doc. 5, 14, 19, 22)
GEOFFREY W. CRAWFORD, District Judge.
Pro se plaintiff Jonathan Horace Dodge brings this § 1983 action against Defendants Manchester Police Department ("MPD"), Martin F. Swirko, Citizens Bank RBS ("Citizens Bank"), Maureen Powers, Mike Donahue, Service Credit Union ("SCU"), Stephanie Fraser, and the State of New Hampshire, alleging constitutional rights violations. Now pending before the Court are MPD and Sergeant Swirko's Motion to Dismiss for Lack of Jurisdiction, or in the alternative, Motion to Transfer Case to the U.S. District Court for New Hampshire (Doc. 5); SCU and Ms. Fraser's Motion to Dismiss for Lack of Jurisdiction and Improper Venue (Doc. 14); Citizens Bank, Mr. Donahue, and Ms. Powers's Motion to Dismiss for Improper Venue (Doc. 19); and the State of New Hampshire's Motion to Dismiss for Failure to State a Claim (Doc. 22.) For the reasons set forth below, all pending motions to dismiss (Docs. 5, 14, 19, and 22) are GRANTED.
I. Factual Background and Procedural History.
This case arises from events that occurred in 2008 and led to Mr. Dodge's conviction in the State of New Hampshire for issuing a bad check. (Doc. 4 at 3-4.) Mr. Dodge is currently in the State of Vermont's custody at Northeast Regional Correctional Facility in St. Johnsbury, Vermont awaiting extradition proceedings after he allegedly fled prior to sentencing in the New Hampshire criminal matter. See Dodge v. State of New Hampshire, No. 1:13-cv-222, Dkt. 11, slip op. at 4 (D. Vt. Dec. 6, 2013). Sergeant Swirko is an MPD detective who investigated the crime that resulted in Mr. Dodge's conviction. Ms. Powers and Mr. Donahue are employees of Citizens Bank in Medford, Massachusetts, and Ms. Fraser is an employee of SCU in Manchester, New Hampshire. (Doc. 4 at 1.)
For purposes of the pending motions to dismiss, the court assumes the facts as set forth in Mr. Dodge's Complaint. On March 29, 2008, Mr. Dodge cashed a check made out to him by Ellison Construction, Inc. at SCU's Manchester, New Hampshire location. (Doc. 4 at 2.) The check was drawn from a Citizens Bank account in Beverly, Ohio. ( Id. ) At the SCU teller's request, Mr. Dodge filled out a form and provided identification. ( Id. ) The teller verified the check and processed the transaction. ( Id. ) Later, the check was returned to SCU "unpaid, " and Ms. Fraser ran a credit check on Mr. Dodge and "[d]ecided based upon the credit report that [Mr. Dodge] had written the check to himself." ( Id. ) Ms. Fraser then sent a "notice of dishonor" letter to Mr. Dodge's former address, assuming that the address Mr. Dodge used on the check cashing form was not correct. ( Id. ) Mr. Dodge did not receive the letter.
On November 6, 2008, Mr. Dodge was arrested for issuing a bad check. ( Id. ) The probable cause affidavit prepared by Sergeant Swirko in support of the arrest warrant incorrectly stated that Mr. Dodge's "real name" was "Brian Scott Smith, " when in fact Mr. Dodge legally changed his name from "Brian Scott Smith" to "Jonathan Horace Dodge" in the State of New Hampshire in 1997. (Doc. 4 at 3.) Sergeant Swirko used the name "Brian Scott Smith" to suggest that Mr. Dodge changed his identity to assist in his crime, creating "circumstantial evidence" that Mr. Dodge wrote the bad check. ( Id. ) Sergeant Swirko also falsely claimed that he could not physically locate Mr. Dodge for questioning and that when he went to Mr. Dodge's Weare, New Hampshire residence, Mr. Dodge would not come to the door. ( Id. ) Citizens Bank in Beverly, Ohio "would not cooperate with [Officer Swirko]" and therefore Sergeant Swirko "had a serious problem" because he could not prove an element of the crime. ( Id. ) Instead, Sergeant Swirko persuaded Defendant Citizens Bank in Massachusetts "to give a false stat[e]ment so [Sergeant Swirko] could make his case." ( Id. )
On December 18, 2008, Sergeant Swirko falsely testified before the Hillsborough County Grand Jury that Mr. Dodge's real name was "Brian Scott Smith" despite admitting to Mr. Dodge on the day of Mr. Dodge's arrest that he was aware of the legal name change. ( Id. )
Mr. Dodge brings his claims pursuant to 42 U.S.C. § 1983 alleging that Defendants violated his Fourth, Eighth, and Fourteenth Amendment due process rights. The Complaint alleges that Defendants conspired together with Ross McLeod,  a New Hampshire state prosecutor, to create false evidence against Mr. Dodge or made false statements in order to "prevent [Mr. Dodge] from receiving a fair trial." (Doc. 4 at 7.) Sergeant Swirko also conspired with Mr. McLeod "to make up the lies told by McLeod in his final argument to the jury" ( Id. ) and violated Mr. Dodge's Fourth Amendment rights when he made false statements to the Hillsborough County Grand Jury. (Doc. 4 at 8.)
The Complaint further alleges that the State of New Hampshire and Mr. McLeod conspired to violate Mr. Dodge's Fourth Amendment rights when they "[intentionally] filed false affidavits with the State of Vermont" indicating that Mr. Dodge was wanted in the State of New Hampshire, when in fact, the New Hampshire Supreme Court had ordered that the charges against Mr. Dodge be dismissed. ( Id. ) The State of New Hampshire and Mr. McLeod also conspired to hold Mr. Dodge in custody in the Northeast Correctional Facility in Vermont in order to illegally extradite him to New Hampshire and "murder him" in order to "keep his mouth shut." ( Id. )
With respect to Ms. Fraser, the Complaint alleges that she falsely reported to Sergeant Swirko that Mr. Dodge "had deposited a check payable to himself from Ellison [C]onstruction, Beverly[, ] Ohio in the amount of [$]749.78." (Doc. 4 at 9.) Ms. Powers and Mr. Donahue also acted "in concert or collusion" with Sergeant Swirko to "scan the check into the Citizens Bank computer, " and Ms. Powers then improperly stated in her affidavit that there was no record of Ellison Construction. ( Id. )
Mr. Dodge seeks prospective injunctive relief and compensatory and punitive damages. (Doc. 4 at 9-10.)
At several points, the Complaint refers to a previous matter filed by Mr. Dodge in the District of New Hampshire against Sergeant Swirko, Manchester Police Officer Stephen Reardon, and prosecutor Ross McLeod while the New Hampshire criminal matter was still pending. See Dodge v. Swirko, No. 09-cv-421-PB, Dkt. 6, slip op. (D.N.H. May 24, 2010), adopted No. 09-cv-421-PB, Dkt. 7, slip op. (D.N.H. June 25, 2010). On June 25, 2010, under the same set of facts as appear here, Judge Barbadoro approved the Report and Recommendation of the Magistrate Judge dismissing without prejudice Mr. Dodge's Fourth and Fourteenth Amendment due process claims, in part, because Mr. Dodge's criminal case had not yet resolved. Id. Mr. Dodge also filed a Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, in this court, which Senior Judge J. Garvan Murtha dismissed on March 31, 2014 and is currently pending on appeal. See Dodge v. State of New Hampshire, No. 13-cv-00222-jgm-jmc, Dkt. 18, slip op. (D. Vt. March 31, 2014).
The Complaint in this matter was filed on October 10, 2013 after the court granted Mr. Dodge in forma pauperis status. MPD and Sergeant Swirko move to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) and 12(b)(3) for lack of personal jurisdiction and improper venue, arguing that neither Defendant has sufficient minimum contacts with the State of Vermont and none of the events giving rise to the claim occurred in Vermont. (Doc. 5 at 5-6.) In the alternative, MPD and Sergeant Swirko move for a transfer of venue pursuant to 28 U.S.C. § 1404. (Doc. 5 at 7.) Ms. Fraser and SCU also move to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) and 12(b)(3) for lack of personal jurisdiction and improper venue, stating similar grounds (Doc. 14 at 3-6), and move in the alternative for a transfer of venue pursuant to 28 U.S.C. § 1404. (Doc. 14 at 6.) Citizens Bank, Ms. Powers, and Mr. Donohue move to dismiss pursuant to Fed.R.Civ.P. 12(b)(3) for improper venue. (Doc. 19 at 1-3.) The State of New Hampshire moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim, arguing ...