Tompson v. LeDuc

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Judith Tompson
v. Civil No. 17-cv-042-SM
Benjamin LeDuc
AMENDED
REPORT AND RECOMMENDATION
Pro se plaintiff, Judith Tompson, has filed a complaint
(Doc. No. 1) and a self-styled “Notice of Appeal” (Doc. No. 1-1)
from a state court decision. The pleadings are before this
court for preliminary review. See 28 U.S.C. § 1915(e)(2); LR
4.3(d)(2).
Preliminary Review Standard
The magistrate judge conducts a preliminary review of
complaints filed in forma pauperis. The magistrate judge may
recommend to the district judge that one or more claims be
dismissed if, among other things, the court lacks jurisdiction,
a defendant is immune from the relief sought, or the complaint
fails to state a claim upon which relief may be granted. See 28
U.S.C. § 1915(e)(2); LR 4.3(d)(2). In conducting its
preliminary review, the court construes pro se complaints
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). The complaint must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief.’” See Ashcroft
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v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Background
The background facts relating to this case have been
recited in a prior decision in a related case, see Tompson v.
New Hampshire, No. 15-cv-293-JL (D.N.H. Apr. 14, 2016) (ECF No.
23, at 1-2), R&R approved, No. 15-cv-293-JL (D.N.H. May 10,
2016) (ECF No. 28). Tompson resisted a deputy sheriff’s efforts
to serve civil process on her on a date in November 2011. Id.
On that date, Tompson drove away in her own car, and then nearly
hit the sheriff’s cruiser with her car. Id. An ensuing state
prosecution of charges of resisting arrest and reckless conduct
resulted in Tompson’s conviction. See id. The defendant in
this case is Assistant County Attorney Benjamin LeDuc, who
prosecuted the state’s case against Tompson in Rockingham County
Superior Court.
The underlying state prosecution originally proceeded on
misdemeanor charges. Plaintiff alleges in the Complaint (Doc.
No. 1) here that minutes before the February 2012 trial was
scheduled to occur on those charges in the Tenth Circuit Court,
District Division, in Salem, the prosecutor, Attorney Benjamin
LeDuc, nol prossed the charges. Plaintiff alleges that Attorney
LeDuc threatened to have Tompson indicted on felony charges
unless she pleaded guilty to the misdemeanors at that time.
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Tompson was subsequently indicted, tried, and convicted of the
felony reckless conduct charge and related misdemeanors in 2013.
Tompson has pursued post-conviction litigation in the state
courts and in federal court relating to the underlying
conviction. Tompson’s post-conviction litigation in the state
courts has been unsuccessful. See, e.g., State v. Tompson, No.
218-2012-cr-0258 (N.H. Super., Rockingham Cnty., Oct. 18, 2016)
(denying motion for post-conviction relief) (“State Post-
conviction Order”); see also State v. Tompson, No. 2016-0693
(N.H. Jan. 27, 2017) (declining to accept discretionary appeal
of State Post-conviction Order). Tompson’s petition for a writ
of habeas corpus filed in federal district court, pursuant to 28
U.S.C. § 2254, remains pending. See Tompson v. New Hampshire,
No. 15-cv-293-JL (D.N.H.) (“§ 2254 Petition”).
In this case, Tompson asserts claims of violations of her
Sixth and Fourteenth Amendment rights, arising from the
prosecutor’s decision to nol pros the misdemeanor charges and
then to seek a felony indictment arising from the same incident.
Plaintiff seeks damages on her claims against the defendant
prosecutor in this case, which she has filed under 42 U.S.C.
§ 1983. Additionally, plaintiff has styled this action as an
“appeal” of the New Hampshire Supreme Court’s order declining to
accept an appeal of the State Post-conviction Order. See Doc.
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No. 1-1.1
Discussion
I. No Appellate Jurisdiction
Plaintiff characterizes this action as an “appeal” of the
New Hampshire Supreme Court (“NHSC”) decision to decline to
accept an appeal of the State Post-conviction Order. This court
is not an appellate court; its jurisdiction in general is
original, and an “appeal” of the NHSC decision not to exercise
its appellate jurisdiction over a Superior Court order is not
properly filed in this court. See generally Exxon Mobil Corp.
v. Saudi Basic Indus. Corp., 544 U.S. 280, 284-88 (2005)
(discussing Rooker-Feldman doctrine). Cf. 28 U.S.C. § 1257.
II. Heck Rule
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court
held that,
1This is the second federal civil action for damages filed
by plaintiff raising claims arising out of the underlying
criminal proceeding. The first federal civil action for
damages, Tompson v. Rockingham Cnty. Sheriff’s Dep’t, No. 15-cv-
471-LM (“Tompson I”), named the Rockingham County Sheriff’s
Department as the defendant. Tompson I was dismissed in
February 2016. See Tompson I, No. 15-cv-471-LM, 2016 WL 721486
(D.N.H. Feb. 3, 2016) (ECF No. 5), R&R approved, No. 15-cv-471-
LM, 2016 WL 738213 (D.N.H. Feb. 22, 2016) (ECF No. 7).
Tompson’s appeal of the dismissal of Tompson I remains pending
in the First Circuit at this time. See Tompson v. Rockingham
Cnty. Sheriff’s Dep’t, No. 16-1324 (1st Cir., appeal docketed
Mar. 31, 2016).
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in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called
into question by a federal court’s issuance of a writ of
habeas corpus.
Id. at 486–87 (footnote omitted). The Heck rule requires courts
to dismiss § 1983 claims if a favorable judgment would
necessarily imply the invalidity of that prisoner’s conviction
or sentence. Id. at 487.
Here, plaintiff has alleged that prosecutorial misconduct,
violating her right to a speedy trial, resulted in her
conviction and damaged her reputation. She seeks damages for
emotional distress, defamation of character, and additional
compensation for the consequences of her trial and conviction,
as well as punitive damages.
Plaintiff’s claims of prosecutorial misconduct and
violations of her speedy trial rights, if proven, would
necessarily invalidate her underlying state court conviction.
That conviction has not previously been declared invalid or
called into question by the issuance of a writ of habeas corpus.
Accordingly, Heck bars plaintiff from proceeding on her federal
constitutional claims, and for that reason, the district judge
should dismiss this action.
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III. Prosecutorial Immunity
Prosecutors are entitled to absolute immunity from claims
arising out of their “prosecutorial actions that are ‘intimately
associated with the judicial phase of the criminal process.’”
Van de Kamp v. Goldstein, 555 U.S. 335, 341 (2009) (quoting
Imbler v. Pachtman, 424 U.S. 409, 430 (1976)); accord Belcher v.
Paine, 136 N.H. 137, 148, 612 A.2d 1318, 1325-26 (1992)).
Plaintiff alleges violations of her rights, based on Attorney
LeDuc’s discretionary decisions to bring felony charges against
Tompson, as well as Attorney LeDuc’s plea negotiations relating
to pending misdemeanor charges. All of these acts fall squarely
within the scope of prosecutorial functions conducted during
“the judicial phase of the criminal process,” and thus, Attorney
LeDuc is absolutely immune from civil liability for those acts.
Accordingly, the district judge should dismiss all of the claims
asserted against Attorney LeDuc.
Conclusion
For the foregoing reasons, the district judge should
dismiss this case 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). The
fourteen day period may be extended upon motion. Failure to
file objections within the specified time waives the right to
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appeal the district court’s order. See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
March 16, 2017
cc: Judith Tompson, pro se
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