Estabrook v. NH, State of

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Thomas Estabrook
v. 	Civil No. 18-cv-46-PB
State of New Hampshire
REPORT AND RECOMMENDATION
Before the court is plaintiff Thomas Estabrook’s complaint
(Doc. No. 1), naming the State of New Hampshire and/or Merrimack
County Superior Court as the defendant(s), and seeking an order:
(1) vacating a 2016 ruling of the Merrimack County Superior
Court in his habeas corpus proceedings before that court; (2)
vacating Estabrook’s 2009 state criminal conviction, and/or
allowing him to withdraw his guilty pleas to felony and
misdemeanor sexual assault charges; and (3) granting him a new
trial in that criminal case. 	The matter is here for preliminary
review under LR 4.3(d)(1) and 28 U.S.C. § 1915(e)(2).
Preliminary Review Standard
The court may dismiss claims asserted in a complaint filed
in forma pauperis, if the court lacks subject matter
jurisdiction, a defendant is immune from the relief sought, the
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complaint fails to state a claim, or the action is frivolous or
malicious. 	See 28 U.S.C. § 1915(e)(2); LR 4.3(d)(1). 	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.’” 	See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). 	The
court treats as true all well-pleaded factual allegations, and
construes reasonable inferences in plaintiff’s favor. 	See
Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir.
2011).
Background
On January 14, 2009, Estabrook pleaded guilty to one count
of aggravated felonious sexual assault and a misdemeanor charge
of sexual assault, upon the advice of his retained trial
counsel. 	The judge sentenced Estabrook to three to eight years
in prison, stand committed, on the felony charge, and one year
in jail on the misdemeanor charge, to be served concurrently
with the felony prison term. 	Estabrook asserts that his trial
counsel billed him $25,000 for services provided in connection
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with that case.
Estabrook litigated a series of state and federal post-
conviction proceedings while incarcerated, all of which were
unsuccessful, including a state habeas petition, a state motion
for sentence reduction, a state motion to withdraw his guilty
plea, and a federal petition for a writ of habeas corpus under
28 U.S.C. § 2254. 	See, e.g., Estabrook v. Zenk, No. 217-2016-
cv-392 (N.H. Super. Ct., Rockingham Cnty., Nov. 10, 2016) (Doc.
No. 1-1, at 9) (denial of state habeas petition); State v.
Estabrook, No. 211-2008-cr-00253, No. 211-2008-cr-00366 (“State
Criminal Case”) (N.H. Super. Ct., Belknap Cnty. Apr. 4, 2016)
(order denying motion for sentence reduction); State Criminal
Case (N.H. Super. Ct., Belknap Cnty. July 16, 2010) (denial of
motion to withdraw plea); see also Estabrook v. N.H. State
Prison Warden, No. 1:11-cv-00096-JL (“§ 2254 Petition”) (D.N.H.
Nov. 7, 2011) (ECF No. 6) (dismissal of § 2254 Petition).
Estabrook served his full eight year sentence, and was
released in 2017. 	Estabrook asserts that he is presently
subject to a post-conviction sex-offender registry requirement,
and has been on probation while in Connecticut, where he
presently lives. 	It is not clear to this court whether that
probation is part of a sentence for the conviction underlying
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this action, or another conviction not at issue in this case.
Estabrook claims that his state conviction and sentence
violated his Sixth Amendment right to the effective assistance
of trial counsel, and his Fourteenth Amendment right to due
process. 	Estabrook further asserts that his trial counsel
billed him $25,000 for services that he did not provide, which
Estabrook calls “theft by deception.” 	Doc. No. 1, at 13.
Estabrook seeks injunctive relief consisting of orders vacating
the 2016 order denying his state habeas petition; vacating his
2009 conviction and/or allowing him to withdraw his guilty plea;
and granting him a new trial based on what Estabrook
characterizes as “new evidence.”
Discussion
I. 	Eleventh Amendment
It appears that Estabrook intends to invoke this court’s
original jurisdiction over federal civil rights actions,
pursuant to 28 U.S.C. §§ 1331 & 1343, with respect to his claims
alleging that his Sixth Amendment right to the effective
assistance of trial counsel and his Fourteenth Amendment due
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process rights were violated in his state criminal case.1
Estabrook named as defendants to these claims the State of New
Hampshire and/or Merrimack County Superior Court. 	The Eleventh
Amendment, however, bars this court from hearing claims for
damages and injunctive relief asserted against the state and a
state court. 	See Town of Barnstable v. O’Connor, 786 F.3d 130,
138 (1st Cir. 2015). 	Accordingly, the defendants named by
Estabrook -- the State of New Hampshire and/or Merrimack County
Superior Court -- are shielded from suit in this court by the
Eleventh Amendment. 	The district judge should dismiss
Estabrook’s claims to the extent he has named only the State
and/or Merrimack County Superior Court as defendants, without
prejudice to Estabrook’s ability to file a new lawsuit, naming
appropriate defendants who are not immune from his claims.
To the extent Estabrook is seeking to sue any judge sitting
1Because Estabrook initiated this action with a complaint,
this court construes it as a civil case, and does not construe
it as intending to invoke this court’s jurisdiction over a
petition for a writ of habeas corpus under 28 U.S.C. § 2254.
This court expresses no opinion as to whether Estabrook’s
present circumstances could satisfy the “in custody” requirement
for purposes of seeking relief under § 2254, see 28 U.S.C.
§ 2254(a); Maleng v. Cook, 490 U.S. 488, 491-92 (1989) (per
curiam); and whether he could obtain leave from the First
Circuit to file a second or successive § 2254 petition at this
time, see 28 U.S.C. § 2244(b) & (c)); Magwood v. Patterson, 561
U.S. 320, 331 (2010).
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in the Merrimack County Superior Court, this court notes that
judges are entitled to absolute immunity from claims for damages
for their judicial acts, Cok v. Cosentino, 876 F.2d 1, 2 (1st
Cir. 1989), including the rulings at issue in this case. 	In
addition, § 1983 bars claims for injunctive relief asserted
against judges for actions taken in their judicial capacity,
“unless a declaratory decree was violated or declaratory relief
was unavailable.” 	42 U.S.C. § 1983. 	There is no suggestion in
the pleadings that a declaratory decree has been violated, or
that declaratory relief has been unavailable. 	See Adames v.
Fagundo, 198 F. App’x 20, 22 (1st Cir. 2006). 	Accordingly, such
claims should be dismissed.
II. 	Rooker-Feldman Doctrine
Even if this court were to conclude that Estabrook had
named a defendant amenable to suit in this action, the Rooker-
Feldman doctrine provides an independent basis for dismissing
his civil rights claims seeking this court’s order vacating his
2009 conviction and the 2016 Superior Court order denying his
state habeas petition. 	The Rooker-Feldman doctrine holds that,
as a general rule, subject to exceptions including the federal
courts’ habeas corpus jurisdiction, lower federal courts cannot
review and reverse prior state judgments. 	See D.C. Ct. App. v.
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Feldman, 460 U.S. 462 (1983); Rooker v. Fid. Tr. Co., 263 U.S.
413 (1923); Mandel v. Town of Orleans, 326 F.3d 267, 271 (1st
Cir. 2003). 	The Rooker-Feldman doctrine divests this court of
jurisdiction over cases brought by parties that lost in state
court, complaining of injuries caused by state court judgments
rendered before the district court proceedings commenced, and
“‘inviting district court review and rejection of [the state
court’s] judgments.’” 	Skinner v. Switzer, 562 U.S. 521, 532
(2011) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 284 (2005)); McKenna v. Curtin, 869 F.3d 44, 47
(1st Cir. 2017). 	“Although res judicata doctrine would often
achieve similar effects, Rooker–Feldman is at least quasi-
jurisdictional, premised on the rule that among federal courts
only the U.S. Supreme Court has authority to invalidate state
civil judgments.” 	Mandel, 326 F.3d at 271 (citation omitted).
Estabrook did not file a direct appeal of his 2009
conviction, and the New Hampshire Supreme Court in 2010 declined
to accept an appeal of Estabrook’s first motion to withdraw his
guilty plea. 	Estabrook filed a number of post-conviction
motions in his criminal case while he was incarcerated, ending,
most recently, on April 4, 2016, when the Superior Court denied
his motion for sentence reduction. 	See State Criminal Case
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(N.H. Super. Ct., Belknap Cnty. Apr. 4, 2016). 	The Superior
Court order denying Estabrook’s state habeas petition was also
issued in 2016. 	See Zenk, No. 217-2016-cv-392 (N.H. Super. Ct.,
Rockingham Cnty., Nov. 10, 2016) (Doc. No. 1-1, at 9). 	The New
Hampshire Supreme Court declined to accept a discretionary
appeal of that order in 2017, before Estabrook filed this case
here.
Because the state court judgments at issue in this case
were adverse to Estabrook and became final before Estabrook
filed this action, the Rooker-Feldman doctrine applies to
Estabrook’s claims seeking an order from this court vacating the
orders in those Superior Court cases. 	Accordingly, the district
judge should dismiss the claims asking this court to vacate the
underlying Superior Court orders for lack of jurisdiction.2 	See
2Because Estabrook’s civil rights claims are appropriately
dismissed for reasons including defendants’ immunity and lack of
jurisdiction pursuant to the Eleventh Amendment and Rooker-
Feldman doctrine, this court need not address whether Heck v.
Humphrey, 512 U.S. 477 (1994), and the principles of res
judicata and collateral estoppel, arising from the final
judgments entered in his prior state proceedings, would also
preclude plaintiff from litigating those claims here, absent a
prior order invalidating his conviction, or an exercise of this
court’s habeas jurisdiction. 	See generally Skinner v. Switzer,
562 U.S. 521, 533 (2011) (“When ‘a judgment in favor of the
plaintiff would necessarily imply the invalidity of [a]
conviction or sentence’” that has not previously been
invalidated, “§ 1983 is not an available remedy.” (quoting Heck,
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Nugent v. Maine, No. 1:16-cv-522-NT, 2016 U.S. Dist. LEXIS
148755, at *4, 2016 WL 6304664, at *2 (D. Me. Oct. 27, 2016)
(complaint in civil action, asking federal court to review and
overrule of prior judgments relating to plaintiff’s state
conviction, was properly dismissed under 28 U.S.C. § 1915(e)(2),
based on Rooker-Feldman doctrine), R&R approved, 2016 U.S. Dist.
LEXIS 159192, 2016 WL 6808137 (D. Me. Nov. 17, 2016).
Conclusion
The district judge should dismiss this civil rights action,
in its entirety, based on the jurisdictional and immunity issues
discussed herein. 	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-
512 U.S. at 487)). 	Cf. Hemon v. Office of Pub. Guardian, 878
F.2d 13, 15 (1st Cir. 1989) (habeas corpus allows “full-scale
relitigation” of certain matters adjudicated in prior state
proceedings, “‘unfettered by the constraints of collateral
estoppel and res judicata’” (citation omitted)).
.
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Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea Johnstone
United States Magistrate Judge
May 7, 2018
cc: 	Thomas Estabrook, pro se
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