Opinion
Civil No. 07-cv-065-SM.
August 16, 2007
REPORT AND RECOMMENDATION
Robert V. Towle has filed this civil rights action, pursuant to 42 U.S.C. §§ 1983, 1985 1986, and state tort law, alleging that the defendants, both individually and in conspiracy with one another, intentionally interfered with his federal constitutional rights to familial association, to family integrity, and to the care, custody, and management of his child. Towle further alleges that the defendants violated his Fourteenth Amendment substantive due process rights by defaming him. The matter is before me for preliminary review to determine, among other things, whether or not plaintiff has correctly invoked the subject matter jurisdiction of this Court. See United States District Court for the District of New Hampshire Local Rule ("LR") 4.3(d)(2)(A)(ii). As explained herein, I find that this Court does not have subject matter jurisdiction in this matter and I recommend that the action be dismissed in its entirety.
Towle has filed a complaint (document nos. 1 2) and an amended complaint (document no. 7). I consider these documents in the aggregate to be the complaint in this matter.
Towle never identifies any specific facts related to any alleged defamation or how the unidentified defamation violated his Fourteenth Amendment rights. Accordingly, I find that this claim is insufficiently plead and would not survive preliminary review even if I were not recommending dismissal on jurisdictional and abstention grounds.
Towle has also filed a motion for a preliminary injunction (document no. 6) which has been referred to me for consideration (document no. 8). If my recommendation to dismiss this action for lack of subject matter jurisdiction is approved by the District Judge, the request for a preliminary injunction will be moot, and I therefore recommend that it be denied.
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. See Erickson v. Pardus, ___ U.S. ___, 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 January 10, 2006, Towle broke off his sexual relationship with Edna Jodoin by telephone. Towle told Jodoin that he wanted to reconcile with his wife, Katie Wilmot, from whom he had been separated while he was engaging in a relationship with Jodoin. According to Towle, Jodoin became irate and threatened revenge. Two days later, Towle was served with a domestic violence restraining order that Jodoin had obtained ex parte in the Berlin District Court. The information Jodoin provided to the court issuing the order included allegations that Towle had sexually abused his thirteen year old son, J.T. That information was communicated to the New Hampshire Department of Health and Human Services, Division of Children, Youth, and Families ("DCYF"). The following day, January 13, 2006, DCYF caseworker Karen York requested that Wilmot, with whom J.T. was living, bring J.T. to the DCYF offices to be interviewed. Wilmot complied with the request. York conducted interviews with both Wilmot and J.T. York allowed J.T. to return to Wilmot's home, but cautioned Wilmot not to allow Towle and J.T. to be alone together.
On January 23, 2007, Towle and J.T. were visiting a friend. While standing in front of the friend's home, Jodoin, who was driving by, noticed the two together. Jodoin reported what she saw to the Berlin Police Department. Jodoin also called York to inform her that J.T. was with Towle, and not with Wilmot. York tried to call Towle but was unable to reach him. York did reach Wilmot and stated that she hoped that J.T. was still living with her.
The next day, York interviewed Jodoin, and requested that she provide DCYF with medical records documenting Towle's abuse of her, and a copy of the domestic violence restraining order. Jodoin told York that both she and Wilmot had engaged in sexual improprieties with J.T., including fondling and sexual intercourse. This occurred, Jodoin claimed, at Towle's behest and in Towle's presence. Jodoin alleged that Towle told her that he was trying to teach J.T. about sex so that he wouldn't learn about it "on the streets." Towle alleges that these accusations were made in an effort to deprive Towle and Wilmot of custodial and familial rights. Towle also alleges that while Jodoin's recorded interview reveals that she admitted to having sexual intercourse with J.T. once, that York reported to the Berlin Police detective investigating the matter that Jodoin reported approximately ten incidents of sexual intercourse with J.T.
One day later, the Berlin District Court granted DCYF's request for an ex parte order removing J.T. from Towle and Wilmot's custody. J.T. was placed in foster care. Towle claims that DCYF never inquired into or presented the Berlin District Court with any information regarding alternatives to placement in foster care, such as relatives or other people familiar to J.T. despite a statutory obligation to do so in order to obtain an ex parte order to remove a child from his or her home. Towle claims that this omission was an intentional act in furtherance of a conspiracy among the defendants to rule Wilmot out as a viable placement option.
N.H. Rev. Stat. Ann. ("RSA") 169-C:6-a authorizes DCYF or a law enforcement officer to make an ex parte request for emergency interim relief by providing, "to the extent known" certain evidence, under oath, to the court. RSA 169-C:6-a, I. Evidence to be provided under that statute, "when removal of the child is requested," includes "those alternatives to foster care which were considered, such as removal of the alleged perpetrator, or placement of the child with relatives or others with whom the child is familiar." RSA 169-C:6-a, I(f).
On January 26, 2006, Towle filed an emergency motion for ex parte relief requesting that the Berlin District Court grant temporary placement of J.T. with Lorraine Reed, an individual with whom J.T. was familiar. A hearing was held on Towle's motion on March 8, 2006. Defendant Dougherty, legal counsel for DCYF, objected to the placement because Lorraine Reed was not a licensed foster care provider. The Berlin District Court denied Towle's motion.
As further evidence of the conspiracy he alleges, Towle points to incidents where the DCYF defendants took conflicting positions in furtherance of the defendants' efforts to prevent Towle from properly challenging the evidence against him. Specifically, Towle claims that Jodoin, in an early interview with DCYF, inquired as to her legal rights in the investigation, and was told by the interviewer that DCYF is not a law enforcement agency and therefore they don't have to read her any rights. When Towle sought to obtain Jodoin's testimony, however, DCYF requested that Jodoin be appointed counsel prior to her testimony in order to protect her Fifth Amendment right against self-incrimination. Finally, Towle claims, the court appointed counsel for Jodoin. Towle was not permitted to cross-examine Jodoin, even though her statements were the basis of the allegations made against Towle and were apparently admitted in evidence. Towle claims the court found the allegations against Towle to be true based on the DCYF defendants' assurances to the court that Jodoin's statements against Towle were truthful. Also, Towle points to the fact that Jodoin was ultimately charged with aggravated felonious sexual assault on J.T., but that the charges against Jodoin were dropped on DCYF's recommendation, as further evidence that DCYF contradicted itself in its efforts to thwart Towle's defense against the abuse allegations.
Towle alleges that his own attorney in the Berlin District Court proceedings, defendant Carter, rather than representing Towle, participated in the conspiracy against Towle. Towle alleges that Carter did this by refusing and failing to raise appropriate objections, seek answers to pertinent questions of law, provide discovery materials to Towle, perform any factual investigation, and consult with Towle regarding the litigation of the case.
The Berlin District Court found that Towle had abused J.T. On July 3, 2006, the Berlin District Court granted Towle supervised visits with J.T., which were to be assisted and facilitated by J.T.'s guardian ad litem, defendant Roberts. The last of these visits, and Towle's last contact with his son, occurred on August 13, 2006. On that date, defendant Landry, the DCYF employee supervising the visit, terminated the visit because Towle repeatedly attempted to question J.T. about the allegations of abuse, and to record the interview. Towle continued to question J.T. about the allegations despite Landry's repeated warnings that the visit would be terminated if the questioning of J.T. did not stop.
On August 18, 2006, Towle was scheduled for a bail hearing in the Coos County Superior Court on criminal charges that he possessed child pornography with the intent to sell or disseminate it. At the bail hearing, Roberts appeared and requested that the Superior Court include a condition of bail that Towle have no contact with J.T. until J.T.'s eighteenth birthday. The Court imposed that condition. Towle alleges that Roberts had the bail condition imposed to circumvent the Berlin District Court's order allowing contact between Towle and J.T.
On December 4, 2006, Towle was sentenced in the Coos County Superior Court on the child pornography charges. Towle had agreed to a negotiated sentence in exchange for his guilty plea. Towle alleges that the sentence that was imposed included a condition that he not have contact with J.T. prior to J.T.'s eighteenth birthday. Towle asserts that he never agreed to the "no contact" condition as part of his negotiated sentence.
Towle plead guilty to the charges. It is not clear whether or not the charges involved photos Towle allegedly had Jodoin take of J.T. and himself, or other pornographic images that were obtained from Towle's computer.
Towle was sentenced to 3 ½ — 7 years in the state prison, with a consecutive 3 ½ — 7 year sentence suspended. Towle was also directed to complete a sexual offender program and not to have contact with his son.
Towle filed motions to withdraw his plea and vacate his sentence based on the addition of the "no contact" provision of his sentence. The Superior Court motions included, among others, arguments that the sentence exceeded the agreement between the parties, and that denying Towle contact with J.T. violates his First Amendment right to familial association. The motions were denied.
Towle now requests that this Court form an independent body to review and audit previous and current cases handled by DCYF for abuses, reverse the Berlin District Court's finding that Towle abused J.T., and award money damages to Towle and/or J.T. Towle further requests that this Court enjoin the Coos County Superior Court from imposing or enforcing the "no contact" provision in Towle's criminal sentence, and that this Court grant the Berlin District Court the authority to supercede the Superior Court's orders regarding contact between Towle and J.T.
Discussion
Towle's claims and allegations in this case raise a question of subject matter jurisdiction that this court is obligated to consider and resolve sua sponte. See Healthco Int'l v. Brandt, 136 F.3d 45, 50 n. 4 (1st Cir. 1998). For the reasons articulated below, this Court is precluded from exercising jurisdiction over this action under the Rooker-Feldman doctrine, which precludes "lower federal courts . . . from exercising appellate jurisdiction over final state-court judgments." Lance v. Dennis, 546 U.S. 459, ___, 126 S.Ct. 1198, 1201 (2006) (affirming principles established in D.C. Ct. App. v. Feldman, 460 U.S. 462, 476 (1983) and Rooker v. Fid. Trust Co., 263 U.S. 413, 416 (1923)). Additionally, this Court may be precluded from considering the claims in this action by the Younger abstention doctrine, which provides that federal courts should, in certain circumstances, abstain from entertaining cases involving issues that are the subject of ongoing state judicial proceedings.Younger v. Harris, 401 U.S. 37, 43-44 (1971).
I. Rooker-Feldman
The Rooker-Feldman doctrine applies to cases where "the losing party in state court filed suit in federal court after the state proceedings ended, complaining of an injury caused by the state-court judgment and seeking review and rejection of that judgment." Galibois v. Fisher, 174 Fed. Appx. 579, 580 (1st Cir. 2006) (citing Lance, 126 S. Ct. at 1202 and Exxon Mobil Corp. v. Saudi Basic Indus., 544 U.S. 280, 291 (2005)). Rooker-Feldman further forecloses federal court jurisdiction over claims that are inextricably intertwined with claims already adjudicated in a state court proceeding. See Mills v. Harmon Law Offices, 344 F.3d 42, 44 (1st Cir. 2003); Wilson v. Shumway, 264 F.3d 120, 125 (1st Cir. 2001); Sheehan v. Marr, 207 F.3d 35, 39-40 n. 4 (1st Cir. 2000); Wang v. N.H. Bd. of Registration in Med., 55 F.3d 698, 703 (1st Cir. 1995). "A federal claim is inextricably intertwined with the state court claims if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it." Sheehan, 207 F.3d at 40 (internal citations omitted).
Applying the Rooker-Feldman doctrine to this case, I find that the plaintiff's claims derive from the same facts, circumstances, and legal issues that were at issue in the abuse and neglect proceedings before the Berlin District Court and the Coos County Superior Court. In addition to the fact that Towle has specifically requested that this Court overturn the findings and orders of those courts, to decide the claims themselves, this Court must re-examine the decisions of the state courts that heard this matter. Specifically, this Court would delve into the propriety of evidentiary rulings, the sufficiency of the cross-examination afforded to Towle, the credibility of the witnesses and evidence that testified in the state courts and the state courts' application of the facts presented to the New Hampshire statutes that protect children from abuse, and the propriety of a condition of a sentence imposed by the Coos County Superior Court in addition to the correctness of the courts' final decisions. Towle asks this Court to, in essence, pass judgment on the state court's rulings and decisions as though this Court were an appropriate appellate venue in this matter, which it is not. Accordingly, to the extent that the state courts have entered final judgment in these matters, Rooker-Feldman applies, and deprives this Court of jurisdiction over this action. I recommend the complaint be dismissed on that basis.
II. Younger Abstention
My application of the Rooker-Feldman doctrine in this matter presumes that the state courts have entered final judgment in the abuse and neglect and criminal matters. Towle makes no reference to appealing these matters to either the New Hampshire Supreme Court or the United States Supreme Court. Further, I can find no published opinion deciding an appeal of these matters. Should my presumption be incorrect, however, and the matter is ongoing, either in the appellate court or because an appeal has not been taken in a court with jurisdiction, and such an appeal may be taken, I would still recommend dismissal as I find this Court should, in those circumstances, apply the abstention doctrine set forth in Younger, 401 U.S. at 43-44, and abstain from entertaining this matter. See Huffman v. Pursue, Ltd., 420 U.S. 592, 603-05 (1975) (discussing that Younger is grounded in principles of comity and noting that federal courts should not, in certain circumstances, interfere with state courts).
The Younger abstention principle provides that federal courts should abstain from entertaining cases involving issues that are the subject of currently pending state judicial proceedings when: (1) there is an ongoing state proceeding which is judicial in nature; (2) important state interests are involved; and (3) the plaintiff will have an adequate opportunity in the state proceeding to raise the constitutional challenges presented by the federal law suit. Younger, 401 U.S. at 43-44; Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431-32 (1982) (applying the abstention defined in Younger, a criminal case, to civil cases); Brooks v. N.H. Sup. Ct., 80 F.3d 633, 638 (1st Cir. 1996). "Except in the most extraordinary cases, a federal court must presume that state courts, consistent with the imperatives of the Supremacy Clause, see U.S. Const. art. VI, are fully competent to adjudicate federal constitutional and statutory claims properly presented by the parties." Casa Marie, Inc. v. Super. Ct., 988 F.2d 252, 262 (1st Cir. 1993). Federal court intervention can be countenanced only where a plaintiff can show there is no opportunity to raise the federal issues in a state court, a state statute under attack is "flagrantly and patently violative of express constitutional prohibitions in every clause," or plaintiffs can show "bad faith, harassment, or any other unusual circumstances that would call for equitable relief." Younger 401 U.S. at 53-54.
In this case, it is unquestionable that the care and custody of children alleged to have been sexually abused or exploited by their parents is a vital matter of state interest. See Moore v. Sims, 442 U.S. 415, 423, 427 (recognizing this interest and finding Younger abstention appropriate in context of state child removal proceedings due to allegations of child abuse). Further, none of the facts Towle alleges suggest that he has been denied an adequate opportunity in the state courts to adjudicate all of the issues raised in this action. While Towle claims that circumstances in the state court proceedings denied him access to his rights, he does not indicate that he was unable to fully litigate the propriety of those decisions in the state court system. The state courts did not deny Towle the opportunity to present his arguments; they simply denied him the relief he sought. Towle does assert that the actions of the defendants constituted a "conspiracy," presumably one taken for an improper purpose to deprive him of his right to familial association and his right to the "care, custody and management" of his son. However, aside from asserting that the defendants all had a role in the state court proceedings and took positions that were opposed to his own, Towle asserts no facts, only bald allegations, to support the existence of a conspiracy. Accordingly, I do not find that Towle has sufficiently asserted harassment, bad faith, or extraordinary circumstances to overcome this Court's obligation to abstain from deciding this matter. In the event that a state court case is ongoing, I recommend dismissal of this case based on Younger abstention.
Conclusion
For the foregoing reasons, I recommend that this complaint be dismissed. I further recommend that the motion for a preliminary injunction be denied as moot. 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).