Untitled Document

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Robert V. Towle 

 v. Civil No. 13-cv-106-PB 

Hon. Timothy J. Vaughan and

Hon. Peter H. Bornstein 

REPORT AND RECOMMENDATION

Robert V. Towle, an inmate at the Coos County House of 

Corrections, has filed a complaint (doc. no. 1), pursuant to 42 

U.S.C. § 1983, against two New Hampshire Superior Court judges. 

The matter is before the court 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)-(b); LR 4.3(d)(2).

Standard for Preliminary Review

Pursuant to LR 4.3(d)(2) and 28 U.S.C. § 1915A(a), the 

magistrate judge conducts a preliminary review of pro se in 

forma pauperis complaints filed by inmates, before defendants 

have an opportunity to respond to the claims. The magistrate 

judge may direct service of the complaint, or, as appropriate, 

recommend to the district judge that one or more claims be 

dismissed if: the court lacks subject matter jurisdiction, a 

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defendant is immune from the relief sought, the complaint fails 

to state a claim upon which relief may be granted, the 

allegation of poverty is untrue, or the action is frivolous or 

malicious. See 28 U.S.C. § 1915A(b); LR 4.3(d)(2). 

In determining whether a pro se complaint states a claim, 

the court must construe the complaint liberally. See Erickson 

v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). To survive 

preliminary review, the complaint must contain “sufficient 

factual matter, accepted as true, to ‘state a claim to relief 

that is plausible on its face.’” See Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 570 (2007)); Sepúlveda-Villarini v. Dep’t of Educ., 

628 F.3d 25, 29 (1st Cir. 2010). To determine plausibility, the 

court treats as true all well-pleaded factual allegations, and 

construes all reasonable inferences drawn therefrom in the 

plaintiff’s favor. See Ocasio-Hernández v. Fortuño-Burset, 640 

F.3d 1, 12 (1st Cir. 2011).

Background

In his complaint (doc. no. 1), Towle asserts that bail 

decisions made by Judge Vaughan in Towle’s state criminal case, 

and by Judge Bornstein in Towle’s codefendant’s criminal case, 

violated Towle’s constitutional rights. The complaint here is 

nearly identical to a complaint Towle previously filed in this 

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court in another case, Towle v. Vaughan, No. 12-cv-299 (“2012 

Case”) (D.N.H. filed Aug. 3, 2012) (“2012 Case”). In the 2012 

Case, in which Towle asserted the same substantive claims 

against the same defendants as he does in this case, Towle 

sought both monetary damages and declaratory relief. In the 

instant action, Towle seeks only declaratory relief. 

In the 2012 Case, the magistrate judge issued a report and 

recommendation recommending dismissal of the complaint on the 

basis of judicial immunity. See id. (report and recommendation

issued Dec. 20, 2012). Towle objected, asserting, as he does 

here, that he was seeking declaratory relief against both 

defendants. See id. (Pl.’s Objection filed Jan. 4, 2013). The 

district judge approved the magistrate judge’s report and 

recommendation “[a]fter due consideration of the objection 

filed.” Id. (Order issued Jan. 14, 2013).

Discussion

Towle’s present claims are barred by the doctrine of res 

judicata. A claim is barred by federal res judicata when there 

is “(1) a final judgment on the merits in an earlier suit, (2) 

sufficient identicality between the causes of action asserted in 

the earlier and later suits, and (3) sufficient identicality 

between the parties in the two suits.” Gonzalez v. Banco Cent.

Corp., 27 F.3d 751, 755 (1st Cir. 1994).

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As noted above, this court dismissed the 2012 Case on the 

merits. See 2012 Case (Order of dismissal issued Jan. 14, 

2013). Because Towle has asserted the same claims against the 

same defendants in both cases, the present claims are barred by 

res judicata. The complaint should be dismissed.

Conclusion

For the foregoing reasons, the court recommends dismissal 

of this action in its entirety. Any objections to this report 

and recommendation must be filed within fourteen days of receipt 

of this notice. See Fed. R. Civ. P. 72(b)(2). Failure to file 

objections within the specified time waives the right to appeal 

the district court’s order. See United States v. De JesúsViera, 655 F.3d 52, 57 (1st Cir. 2011), cert. denied, 132 S. Ct. 

1045 (2012); Sch. Union No. 37 v. United Nat’l Ins. Co., 617 

F.3d 554, 564 (1st Cir. 2010) (only issues fairly raised by 

objections to magistrate judge’s report are subject to review by 

district court; issues not preserved by such objection are 

precluded on appeal).

__________________________

Landya McCafferty 

United States Magistrate Judge 

August 7, 2013 

cc: Robert V. Towle, pro se

LBM:jba

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