Strahan v. McNamara

642 F.Supp.3d 204

2022 DNH 144

Richard Maximus STRAHAN v. William MCNAMARA, Tracy Birmingham, Steven Lee, William Breault, and Rene Kelly

Civil No. 22-cv-391-LM

United States District Court, D. New Hampshire

Signed November 17, 2022

Richard Maximus Strahan, Dover, NH, Pro Se.

Marrielle B. Van Rossum, Devine, Millimet & Branch Devine, Millimet & Branch, Manchester, NH, for William McNamara, Tracy Birmingham, Steven Lee.

Dona Feeney, Friedman Feeney, PLLC, Concord, NH, for William Berault, Rene Kelly.

ORDER

Landya McCafferty, United States District Judge

Plaintiff Richard Maximus Strahan has sued two New Hampshire local police officers and three officials of the University of New Hampshire ("UNH"), alleging that they acted individually and in concert to illegally bar him from using UNH transportation services and to defame him. Presently before the court is plaintiff's emergency motion for temporary restraining order and preliminary injunction enjoining the defendants from arresting him for violating the transportation services ban or from "otherwise interfering with [his] peaceful riding any bus operated by [UNH] during its regular period of public transit operations . . . .". (Doc. No. 20). The defendants have timely objected (doc. nos. 26 and 28), and Mr. Strahan has timely replied to those objections. (doc. no. 30).¹

Legal Standard

To obtain a restraining order or preliminary injunction, a plaintiff "must establish that he is likely to succeed on the merits of his claim, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Bruns v. Mayhew, 750 F.3d 61, 65 (1st Cir. 2014) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). "To demonstrate likelihood of success on the merits, [the party] must show more than mere possibility of success — rather, [he] must establish a strong likelihood that [he] will ultimately prevail." Sindicato Puertorriqueño de Trabajadores v. Fortuño, 699 F.3d 1, 10 (1st Cir. 2012).

"[T]he first two factors, likelihood of success and irreparable harm, [are] 'the most important' in the calculus," id. (quoting González-Droz v. González-Colón, 573 F.3d 75, 79 (1st Cir. 2009)), and "the second factor, irreparable harm, is an 'essential prerequisite for equitable relief,' " Potts NH RE, LLC v. Northgate Classics, LLC, No. 12-cv-82-SM, 2012 WL 1964554, at *3 (D.N.H. May 10, 2012) (quoting Braintree Labs., Inc. v. Citigroup Global Mkts. Inc., 622 F.3d 36, 41 (1st Cir. 2010)), R. & R. adopted by 2012 WL 1969051 (May 30, 2012). Any "preliminary injunction is an extraordinary and drastic remedy that is never awarded as of right . . . ." Peoples Fed. Sav. Bank v. People's United Bank, 672 F.3d 1, 8-9 (1st Cir. 2012) (citation omitted).

Background

The following facts are drawn from Mr. Strahan's complaint, documents appended to the complaint, the instant motion, Mr. Strahan's affidavit (doc. no. 23), and the declaration of defendant Tracy Birmingham, general counsel for the University System of New Hampshire ("Birmingham Dec.") (doc. no. 28-1).

On June 10, 2022, UNH notified Mr. Strahan in writing that he would be arrested if he entered any bus operated by UNH. Complaint (doc. no. 1) ¶¶ 3-4. Mr. Strahan was served in hand with the notice soon after. Id. ¶ 20; Strahan Aff. (doc. no. 23) ¶ 12. The notice was issued by UNH Director of Hospitality & Campus Services William McNamara, one of the defendants in this case. See Attachment 1 to Pl. Mot. (doc. no. 20).

The notice states that Mr. Strahan is banned from UNH buses because of

repeated instances of refusal to abide by UNH transportation rules, disregard of directions from transportation service employees, verbal abuse and intimidation of University staff members and . . . [bus] patrons, and refusal to comport yourself in a manner consistent with behavioral expectations.

Id. Mr. Strahan describes the circumstances leading up to the ban as follows:

On 10 June 2022 I was commuting from UNH to Dover on the Wildcat Transit Route 3B bus. The commute was uneventful until the bus stopped at my chosen bus stop. I went to the front door to exit as is my usual practice. But a new driver I never saw before told me that she would not open the doors so I could exit. She gave me no reason why I could not exit the bus. Instead of driving onward to the next bus stop, she insisted in engaging in a protracted conversation with me. I did not want to talk to her but just go back to the office. The other passengers felt the same. They shouted out to her to drive the bus to their stops and to let me out of the bus. Instead she became concerned that I might file a complaint against her as she knew who I was and was biased against me from the start in her conduct. She called the Dover Police to file a false report against me of disrupting the bus and soliciting them to arrest me for trespassing on the bus. I felt sorrier for my fellow passengers than for me. Clearly the driver was an [expletive deleted] and just wanted to cause a ruckus.

Pltff. Aff. (doc. no. 23) ¶ 8.²

Defendant Tracy Birmingham, general counsel for the University System of New Hampshire, provided background regarding Mr. Strahan's interaction with the UNH bus service. See Birmingham Dec. (doc. no. 28-1). After first noting that defendant McNamara has the "authority to enforce rules relating to the use of UNH's transportation services, including banning passengers . . ." id. ¶ 2, Birmingham detailed the following:

On or about March 20, 2019, UNH Transportation sent Strahan a Final Warning, cautioning that Strahan would not be permitted to ride the UNH Wildcat Transit buses if he continued to disregard drivers' instructions that he stop moving to the front door before the bus stopped and crossing directly in front of the bus after disembarking.

On or about October 12, 2021, I emailed Mr. Strahan to remind him of expectations for civil engagement and to advise that use of an expired University student ID to avoid paying transportation fares was fraudulent and needed to stop.

Birmingham Dec. (doc. no. 28-1) ¶¶ 4-5.

Birmingham also detailed Mr. Strahan's past behavior on UNH buses:

On or around October 19, 2021, a driver reported that Mr. Strahan showed an invalid student UNH ID and tried to board the bus without paying the fare. On or around October 26, 2021, a driver reported that Mr. Strahan did not show a valid bus pass or pay the fare. When the driver asked if he had a UNH ID or the fare, he did not respond and the driver had to continue on the route to avoid delays. When the driver insisted that he display an ID or pay the fare, Mr. Strahan claimed that no one else showed any pass to ride, and then reluctantly paid the fare while shouting at the driver that transportation personnel "were all Nazis, he would sue [them] all, [they] would rot in jail for the rest of [their] lives, and [they] would all burn in hell with [their] corporate overlords." On or around November 19, 2021, a driver reported that Mr. Strahan tried to use an invalid student UNH ID and the driver said he had to pay cash fare because his ID was invalid. He asked the driver who said his ID was invalid, and then held up service to probe further for the name of the manager who provided direction that his expired UNH ID was not to be accepted. When he was advised of the individual's name, Mr. Strahan said "so she's the manager for now, but everything is temporary. Don't be too loyal or get too attached to her because I am the master of this situation."

On or around November 23, 2021, a driver reported that Mr. Strahan attempted to use his invalid UNH ID to ride, and was informed by the driver that his UNH ID was not valid. He proceeded to pay the fare while grumbling about how UNH IDs "don't go invalid." After he finished paying, he brought up that the driver had filed a report about him and stated that next week another UNH employee would be a defendant in federal court regarding a government corruption lawsuit. After that, he proceeded to wear his mask improperly, and ignored the driver's repeated announcements about mask use, forcing the driver to stop the bus and confront him with a final warning.

On or around December 21, 2021, a driver reported that Mr. Strahan attempted to use his invalid UNH ID. When the driver informed him that his ID was invalid, he said, "I gave you a chance, but if you stay on this path you will end up in hell."

On or around January 6, 2022, a driver reported that Mr. Strahan tried to use his invalid UNH ID. When the driver advised that he had to pay, he said he only had a dollar. When the driver said he still had to pay, Mr. Strahan made a scene and called the driver "a Nazi." The driver had to ask him to wear his mask properly three times. When Mr. Strahan got off the bus, he stated that a transportation manager "was a liar" and he was going to sue her.

On or around March 24, 2022, a driver reported that Mr. Strahan stood in the street at the bus stop. The driver reports that it is Mr. Strahan's practice to sometimes stand in the street to force the bus to wait short of the normal bus stop. The driver gestured and beeped the horn to notify Mr. Strahan to move, and then proceeded to the stop to allow other passengers to board. Mr. Strahan screamed at the driver, accused them of trying to run him over, and put his phone in the driver's face and said he was recording. Mr. Strahan entered the bus without a mask (as the driver reported was his regular practice) and only put it on after he had been seated in the back of the bus. The driver did not direct Mr. Strahan to put on the mask upon entering the bus in order to avoid a further confrontation. When he disembarked, Mr. Strahan stepped into the street in front of the bus and walked down the street obstructing the vehicle. The driver reports that Mr. Strahan had similarly obstructed the vehicle after

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