Henderson v. Del Carmen Gil et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Toby J. Henderson
v. Civil No. 1:22-cv-332-JL
Maria Del Carmen Gil et al.
REPORT AND RECOMMENDATION
Pro se plaintiff Toby J. Henderson brings suit against
defendants Maria Del Carmen Gil, Amy Fortin, Sarah Blais, and
Judge Janet Subers, alleging violations of his constitutional
rights. (Doc. Nos. 1, 1-3, 14). Ms. Gil, also proceeding pro
se, moves to dismiss on the basis that Mr. Henderson’s claims
against her concern an ongoing child custody matter pending in a
Tennessee state court. (Doc. No. 18). Mr. Henderson objects.
(Doc. No. 241).
The motion to dismiss is before the court for a
recommendation as to disposition. See Order, Dec. 23, 2022. As
explained below, because Mr. Henderson’s complaint and complaint
addenda lack the requisite supporting facts to state a claim for
1 Mr. Henderson’s motion to continue (Doc. No. 24) appears
to be a response to Ms. Gil’s motion to dismiss and a request
for the case to continue. Accordingly, the Clerk’s Office is
directed to amend the docket to identify Doc. No. 24 as an
objection to Doc. No. 18.
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relief against Ms. Gil, the court recommends that the district
judge grant the motion to dismiss.
Legal Standard
To defeat a Rule 12(b)(6) motion to dismiss, Mr. Henderson
must state a claim for relief by pleading “factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Martinez v.
Petrenko, 792 F.3d 173, 179 (1st Cir. 2015). This standard
“demands that a party do more than suggest in conclusory terms
the existence of questions of fact about the elements of a
claim.” A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 81
(1st Cir. 2013). In ruling on such a motion, the court accepts
as true all well-pleaded facts set forth in the complaint and
draws all reasonable inferences in the plaintiff’s favor. See,
e.g., Martino v. Forward Air, Inc., 609 F.3d 1, 2 (1st Cir.
2010). The court may also consider judicially noticed
documents, matters of public record, and documents introduced by
the plaintiff in his objections to the motions to dismiss,
without converting the 12(b)(6) motion into a motion for summary
judgment. See Breiding v. Eversource Energy, 939 F.3d 47, 49
(1st Cir. 2019); Greene v. Rhode Island, 398 F.3d 45, 49 (1st
Cir. 2005).
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Because Mr. Henderson is proceeding pro se, the court
construes his complaint and complaint addenda liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)
(internal citations omitted) (“a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers”). Pro se status,
however, “does not insulate a party from complying with
procedural and substantive law. Even under a liberal
construction, the complaint must adequately allege the elements
of a claim with the requisite supporting facts.” Chiras v.
Associated Credit Servs., Inc., No. 12-10871-TSH, 2012 WL
3025093, at *1 n.1 (D. Mass. July 23, 2012) (quoting Ahmed v.
Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997) (internal citation
and quotation marks omitted)).
Background
The court draws the following factual background primarily
from Mr. Henderson’s complaint and complaint addenda, but it
also considered additional information and documents submitted
by Mr. Henderson.2 In 2021, Mr. Henderson’s two minor children
were living with him on a farm in Stratford, New Hampshire.
2 (Doc. Nos. 14, 17, 19, 21, 22, 23).
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During this time, New Hampshire Child Protection Social Workers
(“CPSWs”), including Ms. Fortin and potentially Ms. Blais,
repeatedly visited Mr. Henderson at his home on the farm.
According to Mr. Henderson, when the CPSWs visited, he
would escort them off his property and refuse to speak with
them. He also would not allow the CPSWs to speak with his
children. After the CPSWs’ failed attempts to gain access to
Mr. Henderson’s home and his children, state agents searched Mr.
Henderson’s home, pursuant to a search warrant, and removed the
children from his care and custody. Mr. Henderson maintains
that the search warrant was based upon an affidavit filed with
the warrant application which included false statements about
him, the children’s health, and their living conditions.
A hearing on the removal of the children was scheduled for
the following day, in a New Hampshire state court, but the
children’s mother, Ms. Gil, who had obtained custody of the
children after they were removed from Mr. Henderson’s home,
failed to appear. According to Mr. Henderson, at that hearing,
he would have been able to disprove the false allegations
against him which were asserted in the search warrant affidavit
and related pleadings in the case.
Ms. Gil subsequently left New Hampshire with the children.
Mr. Henderson asserts that court proceedings relevant to the
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custody of his children took place in Tennessee. While Mr.
Henderson appeared at those proceedings via videoconference,
through counsel, he was unable to obtain custody of his
children. Mr. Henderson further asserts that a Tennessee court
has issued a restraining order against him which has interfered
with his ability to have any contact with his children. The
court documents submitted by Ms. Gil indicate that the child
custody matter is still pending in Tennessee and that Ms. Gil
continues to have sole and exclusive custody of the children.
Discussion
Liberally construed, Mr. Henderson’s complaint and addenda
assert claims against Ms. Gil under 42 U.S.C. § 1983, as well as
a supplemental state law claim under New Hampshire common law.
In her motion to dismiss, Ms. Gil appears to argue that Mr.
Henderson’s claims against her should be dismissed because they
concern a child custody proceeding currently pending in a
Tennessee state court. In response, Mr. Henderson contends that
his claims against Ms. Gil should be before this court because
he never had an opportunity to be heard in a New Hampshire state
court and because Ms. Gil defrauded a New Hampshire state court.
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I. Section 1983
Section 1983 provides a cause of action against certain
individuals who, while acting under color of state law, violate
the federal constitutional rights of another. See Gagliardi v.
Sullivan, 513 F.3d 301, 306 (1st Cir. 2008). Thus, an essential
element of a Section 1983 claim is that the defendant acts under
the color of state law. See id. With certain exceptions not
applicable here, private actors generally cannot be held liable
for violations of an individual’s federal constitutional rights,
and Section 1983 does not provide a cause of action for purely
private conduct that allegedly impacts a plaintiff’s federal
constitutional rights. See Georgia v. McCollum, 505 U.S. 42, 53
(1992) (citing Polk Cty. v. Dodson, 454 U.S. 312 (1981)).
The complaint and complaint addenda contain no factual
allegations to suggest that Ms. Gil acted under the color of
state law. Mr. Henderson does not claim that Ms. Gil is
employed by the state or engaged in state action. Similarly,
Mr. Henderson never asserts that Ms. Gil colluded with state
actors to violate Mr. Henderson’s federal constitutional rights.
Because the allegations in his complaint fail to demonstrate
that Ms. Gil acted under color of state law, she is not subject
to liability under Section 1983. Accordingly, the district
judge should dismiss that claim as to Ms. Gil.
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II. New Hampshire Common Law Fraud
“Under New Hampshire law, to state a fraud claim, a
plaintiff must allege facts that show ‘the defendant made a
representation with knowledge of its falsity or with conscious
indifference to its truth with the intention to cause another to
rely upon it.’” Langlois v. Insys Therapeutics, Inc., No. 19-
cv-192-JD, 2019 WL 2140589, at *4 (D.N.H. May 15, 2019) (quoting
Snierson v. Scruton, 145 N.H. 73, 77 (2000)). “In order to
withstand a motion to dismiss, the plaintiff must specify
the essential details of the fraud, and specifically allege the
facts of the defendant’s fraudulent actions.” Jay Edwards, Inc.
v. Baker, 130 N.H. 41, 46–47 (1987) (quotation and brackets
omitted); see also Fed. R. Civ. P. 9(b) (“In alleging fraud or
mistake, a party must state with particularity the circumstances
constituting fraud or mistake.”).
Mr. Henderson alleges in general terms that Ms. Gil
committed fraud on a New Hampshire state court. His complaint
and complaint addenda, however, contain no allegations of any
specific misrepresentation by Ms. Gil or that Mr. Henderson
relied on any such misrepresentation to his detriment.3 In the
3 While Mr. Henderson submitted exhibits purporting to show
Ms. Gil’s fraud (Doc. No. 22), the court cannot discern
fraudulent statements by Ms. Gil that Mr. Henderson relied on to
his detriment.
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absence of specific and detailed allegations concerning Ms.
Gil’s alleged fraudulent conduct, Mr. Henderson fails to state a
claim of fraud under New Hampshire common law and fails to
satisfy the heightened pleading standard applicable to a fraud
claim. Fed. R. Civ. P. 9(b). Accordingly, the court should
dismiss Mr. Henderson’s remaining claim against Ms. Gil for
failure to state a claim.
Conclusion
For the foregoing reasons, the district judge should:
approve this Report and Recommendation; and grant the motion to
dismiss (Doc. No. 18). Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. Fed. R. Civ. P. 72(b)(2). The fourteen-day period
may be extended upon motion. Failure to file any objection
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). Only those issues raised in
the written objections to this Report and Recommendation “‘are
subject to review in the district court,’” and any issues “‘not
preserved by such objection are precluded on appeal.’” Id.
(citations omitted).
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__________________________
Andrea K. Johnstone
United States Magistrate Judge
May 22, 2023
cc: Toby J. Henderson, pro se
Maria Del Carmen Gil, pro se
Counsel of record
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