Rose v. Governor, NH, State of et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
James Edward Rose, Jr.
v. 	Civil No. 19-cv-311-LM
Governor, State of New Hampshire, et al.1
REPORT AND RECOMMENDATION
Plaintiff James Edward Rose, Jr.’s complaint (Doc. No. 1)
is before the court for preliminary review, pursuant to 28
U.S.C. § 1915(e)(2) and LR 4.3(d)(2). 	Also before the court are
nine motions containing factual allegations explaining matters
in the complaint, which this court considers in its preliminary
review. 	See Doc. Nos. 3, 4, 5, 6, 7, 8, 9, 10, 11.
Background
Rose alleges that in June 1973, his then wife Donna gave
birth to Rose’s son Jamey. 	Rose asserts he did not know about
Jamey’s birth, as he and Donna were separated at the time, and
Rose was incarcerated in California for some of that period. 	He
alleges that Donna had told him at some time during the course
1Plaintiff names as defendants: New Hampshire Governor Chris
Sununu; Hillsborough County; Hillsborough County Board of
Commissioners Chair Toni Pappas; City of Manchester Mayor Joyce
Craig; Beverly Kidder; two deceased defendants, Donna Ruth
Jackson and Alan Kidder; and a list of unnamed City and County
health care providers.
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of their divorce in 1980 that she had “miscarried,” that the son
had been stillborn, or that she had “lost” the child.
Rose asserts that Donna abandoned Jamey when he was an
infant, and that Jamey lived in foster homes until he was three,
when Alan and Beverly Kidder adopted him. 	Rose, who asserts he
was not aware of Jamey’s existence, was not aware of Jamey’s
placements in foster homes or of his adoption by the Kidders.
Attached to the complaint is a March 28, 1974 Order of a
state court in New Hampshire, finding that Jamey had been
neglected and granting the Hillsborough County Department of
Public Welfare temporary custody. 	See Doc. No. 1-4, at 5. 	That
Order lists Jamey’s “mother” and “father” among the parties
present before the court but does not identify those individuals
by name. 	See Doc. No. 1-4, at 5. 	Rose believes an imposter
claiming to be Rose appeared in court as Jamey’s father when
Rose’s parental rights were terminated. 	Rose asserts that he
received records of the adoption for the first time in February
2019, from an anonymous source.
Rose claims that the adoption was “void ab initio” because
Rose received no notice of the hearing at which his parental
rights were terminated, and he did not consent to the adoption.
Rose asserts that State of New Hampshire, Hillsborough County,
and City of Manchester agents named as defendants, the Kidders,
and Donna conspired together to violate his federal rights with
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regard to the termination of Rose’s parental rights. 	Rose, who
is African American, asserts that racist attitudes affected
Jamey’s situation, and resulted in the lack of notice provided
to Rose regarding the state court proceedings. 	Rose seeks
damages.
Preliminary Review Standard
This court conducts a preliminary review of complaints
filed in forma pauperis before defendants are served with
process. 	See 28 U.S.C. § 1915(e)(2); LR 4.3(d)(2). 	Claims may
be dismissed sua sponte if, among other things, the complaint
fails to state a claim upon which relief may be granted, the
court lacks jurisdiction, or a defendant is immune from the
relief sought. 	See 28 U.S.C. § 1915(e)(2). 	To determine
whether to dismiss claims for failure to state a claim, the
court takes as true the factual content in the complaint and
inferences reasonably drawn from those facts, strips away the
legal conclusions, and considers whether plaintiff has stated a
claim that is plausible on its face. 	Hernandez-Cuevas v.
Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). 	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). 	Dismissing an action based on an
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affirmative defense upon preliminary review is permissible if
the facts alleged in the complaint, or matters susceptible of
judicial notice, conclusively establish the elements of the
affirmative defense. 	See Gray v. Evercore Restructuring LLC,
544 F.3d 320, 324 (1st Cir. 2008).
Claims
Construed liberally, the complaint asserts the following
claims:
1. 	State actors acting in concert with private
parties terminated Rose’s parental rights without providing
plaintiff with prior notice and an opportunity to be heard,
in violation of his Fourteenth Amendment due process
rights.
2. 	Defendants violated plaintiff’s rights under the
First, Fourth, Fifth, Sixth, and Eighth Amendments.
3. 	Defendants engaged in criminal conduct in
connection with Jamey’s foster care placements, adoption,
and the termination of plaintiff’s parental rights.
Discussion
I. 	Motion Withdrawing Claims on Jamey’s Behalf (Doc. No. 7)
Rose’s initial filings assert claims on his own behalf and
on behalf of Jamey, an adult who did not sign the complaint. 	In
Document No. 7, Rose withdraws all claims asserted on Jamey’s
behalf. 	The district judge should grant the relief requested in
Document No. 7, to the extent it should find that all claims
asserted on behalf of Jamey are withdrawn.
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II. 	Rooker Feldman
Rose’s claims for damages are premised on this court
finding that in 1974, or at the time of Jamey’s adoption on or
about that date, Rose received no notice before his parental
rights were terminated by a state court judgment, and that
therefore those adoptions proceedings are void.
The [Rooker-Feldman] doctrine divests “lower federal courts
of jurisdiction to hear certain cases brought by parties
who have lost in state court.” . . . [T]he Rooker-Feldman
doctrine applies “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.’”
Sinapi v. R.I. Bd. of Bar Exam’rs, 910 F.3d 544, 549 (1st Cir.
2018). 	The cases upon which the Rooker-Feldman doctrine is
based, Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923), and D.C. Ct.
App. v. Feldman, 460 U.S. 462 (1983), stand for the proposition
that, among federal courts, “only the Supreme Court has the
power to reverse or modify final state court judgments.”
Sinapi, 910 F.3d at 549.
Rose asserts he lost rights through state court proceedings
terminating his parental rights, when an imposter stood in his
place, and allowing the Kidders to adopt Jamey. 	Rose seeks
review and rejection of those state court judgments, which he
asserts deprived him of rights or protected interests without
due process, and otherwise injured him. 	The Rooker-Feldman
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doctrine divests this court of jurisdiction over Rose’s federal
claims. 	Accordingly, Rose’s complaint should be dismissed for
lack of jurisdiction.
III. Statute of Limitations (Claim 1)
An independent basis for dismissing Rose’s claims is the
statute of limitations. 	Rose’s federal claims arise under 42
U.S.C. § 1983. 	Section 1983 cases borrow the relevant
limitations period applied in personal injury cases in the state
where the claim arose. 	See Gorelik v. Costin, 605 F.3d 118, 121
(1st Cir. 2010). 	In New Hampshire, that period is three years.
See id.; N.H. Rev. Stat. Ann. § 508:4.
In two filings entitled “Motion Addressing Statute of
Limitations Pursuant to Federal Law” (Doc. No. 4) and “Motion to
Toll Statute of Limitations in the Case at Bar Pursuant to
Federal and State Law” (Doc. No. 5), Rose argues that the fact
that the records concerning Jamey’s adoption have been, and
remain, sealed provides a basis for tolling the statute of
limitations. 	In that regard, Rose asserts as follows:
Plaintiff contacted the Prothonotary’s Office seeking
information about his Son’s adoption some 15 years ago by
telephone, and the Plaintiff was told that the adoption
records of Jamey Kidder were sealed and that not even a
Court Order could open those records. 	It was at this time
the Plaintiff was made to feel helpless until February 11,
2019 when he discovered Court papers in his Mailbox left
there by some unknown person. . . .
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Doc. No. 4, at 2.
Rose attempts to invoke the “discovery rule” to render his
claims timely. 	The discovery rule, “a doctrine that delays
accrual of a cause of action until the plaintiff has
‘discovered’ it,” Merck & Co. v. Reynolds, 559 U.S. 633, 644
(2010), is a matter of federal law in cases arising under
section 1983. 	See Gregg v. Dep’t of Pub. Safety, 870 F.3d 883,
887 (9th Cir. 2017); see also Wallace v. Kato, 549 U.S. 384, 388
(2007) (“the accrual date of a § 1983 cause of action is a
question of federal law that is not resolved by reference to
state law”).
A section 1983 claim normally accrues at the time of the
injury, when the putative “plaintiff has a complete and
present cause of action” and can sue. 	But to the extent
that the facts necessary to bring a claim are unknown, the
discovery rule may delay accrual until such facts “are or
should be apparent to a reasonably prudent person similarly
situated.” 	Typically, the discovery rule comes into play
either when the injury has lain dormant without
manifestation or when “the facts about causation [are] in
the control of the putative defendant, unavailable to the
plaintiff or at least very difficult to obtain.”
Jardín De Las Catalinas Ltd. P’ship v. Joyner, 766 F.3d 127, 133
(1st Cir. 2014) (citations omitted). 	“Under the federal
‘discovery rule,’ an action accrues when a plaintiff knows both
the existence of an injury and the cause of the injury.”
Kingham v. Pham, 753 F. App’x 336, 337 (5th Cir. 2019)
(citations omitted).
But “a plaintiff need not have conclusive evidence of the
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cause of an injury in order to trigger the statute of
limitations.” 	[Courts] instead “focus on whether the
plaintiff knew of facts that would put a reasonable person
on notice that wrongful conduct caused the harm.”
Jenkins v. Chance, 762 F. App’x 450, 455 (10th Cir. 2019)
(citations omitted).
The facts alleged in the complaint and asserted in Document
Nos. 4 and 5 demonstrate that the sealing of the records at
issue has not concealed the essential facts of Rose’s due
process claim in a manner that would not have put a reasonable
person on notice that wrongful conduct caused the harm, until a
date less than three years before Rose filed this case. 	Rose,
who alleges he did not receive any prior notice or opportunity
to participate in the state proceedings that resulted in the
adoption and termination of his parental rights, has pleaded
facts indicating that he has known for at least fifteen years
that there were adoption proceedings involving Jamey Kidder
which occurred sometime prior to the date of his call to the
state court clerk’s office. 	At the time Rose attempted to
obtain access to Jamey’s adoption records, approximately fifteen
years ago, Rose knew or should have known the facts he pleads
here, that he had not received any prior notice or an
opportunity to participate in the proceedings that resulted in
the termination of his parental rights. 	Under such
circumstances, Rose’s federal claim asserting that state actors
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deprived him of his rights without due process is time-barred.
The district judge should dismiss Claim 1 and deny Rose’s
motions (Doc. Nos. 4, 5) seeking to avoid the impact of the
statute of limitations on his claims.
IV. 	Criminal Conduct (Claim 3)
Plaintiff alleges that defendants effectively kidnapped
Jamey and otherwise engaged in criminal conduct affecting Rose’s
rights. 	There is no federal constitutional right to have
criminal wrongdoers brought to justice. 	See Leeke v. Timmerman,
454 U.S. 83, 87 (1981); Nieves-Ramos v. Gonzalez-de-Rodriguez,
737 F. Supp. 727, 728 (D.P.R. 1990). 	A private party has no
standing to seek relief in a civil action for allegedly criminal
conduct. 	See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)
(individual has no “judicially cognizable interest in the
prosecution or nonprosecution of another”). 	Rose’s claims
(Claim 3) based on allegations of criminal misconduct are
properly dismissed on that basis.
V. 	Remaining Federal Claims (Claim 2)
Rose has not alleged facts regarding the nature of his
First, Fourth, Fifth, Sixth, and Eighth Amendment claims and has
thus failed to state any claim upon which relief can be granted
based on alleged violations of those constitutional rights.
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Accordingly, Claim 2 is properly dismissed on that basis.
VI. 	Remaining Motions (Doc. Nos. 3, 6, 8, 9, 10, 11)
As all of the claims in this action should be dismissed,
the pending motions seeking to unseal state court adoption
records (Doc. No. 3), and to expeditiously and fairly rule on
plaintiff’s claims (Doc. Nos. 6, 8, 9, 10, 11), should be denied
as moot.
Conclusion
For the foregoing reasons, the district judge should grant
the motion to withdraw claims asserted on behalf of Jamey Kidder
(Doc. No. 7), dismiss the complaint (Doc. No. 1), and deny the
remaining motions (Doc. Nos. 3, 4, 5, 6, 8, 9, 10, 11). 	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); LR 7.2(d). 	The fourteen-day period may be
extended upon motion. 	Failure to file objections within the
specified time waives the right to 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
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July 12, 2019
cc: 	James Edward Rose, Jr., pro se
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