Rogers v. Garner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kevin J. Rogers
v. Civil No. 16-cv-520-JL
Hon. Michael H. Garner,
New Hampshire Circuit Court,
4th Circuit, Family Division-
Laconia; and Edythe Murphy
REPORT AND RECOMMENDATION
Pro se plaintiff, Kevin J. Rogers, has filed a complaint
(Doc. No. 1), which is before the court for preliminary review
pursuant to LR 4.3(d)(2) and 28 U.S.C. § 1915(e)(2). Rogers
also filed a motion for a preliminary injunction (Doc. No. 2),
which the district judge denied. See Dec. 1, 2016 Order. The
court considers the factual assertions in both the complaint and
motion for preliminary injunction in this preliminary review.
Preliminary Review
I. Standard
The magistrate judge in this court conducts a preliminary
review of complaints filed in forma pauperis. See LR 4.3(d)(2).
The magistrate judge may recommend to the district judge that
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
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granted. See 28 U.S.C. § 1915(e)(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
v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
II. Background
This is the third case plaintiff filed in federal court in
2016 relating to issues that have arisen in a state divorce
proceeding. Each of the defendants named here was named as a
defendant in one of the two prior cases in this court. Those
prior cases were dismissed on the bases of Younger abstention
and judicial immunity.1 See Rogers v. Cunningham, No. 16-cv-111-
SM (D.N.H. May 26, 2016), R&R approved, No. 16-cv-111-SM (D.N.H.
June 29, 2016); Rogers v. N.H. Cir. Ct., No. 16-cv-107-JL
(D.N.H. June 3, 2016), R&R approved, No. 16-cv-107-JL (D.N.H.
July 18, 2016). Further, plaintiff’s requests for emergency
relief in those cases, including an order staying ongoing
divorce proceedings, were denied as precluded by Younger and the
Anti-Injunction Act.
In this case, plaintiff asserts Fourteenth Amendment claims
arising from three adverse orders issued in the same contested
1See generally Younger v. Harris, 401 U.S. 37 (1971).
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divorce proceeding between plaintiff and defendant Edythe
Murphy, Case No. 650-2015-DM-0195 (N.H. Cir. Ct., 4th Cir.,
Family Div.-Laconia) (“divorce case”), at issue in the prior
cases plaintiff filed in this court. Defendant Judge Michael
Garner has been the presiding judge in that case.
The first adverse order at issue was issued on November 5,
2015. Plaintiff describes that order as granting Murphy’s
motion to enjoin plaintiff from installing electrical service on
land in Campton, New Hampshire (“Campton property”), where
plaintiff was living at that time. The funds plaintiff asserts
he paid to cover the cost of the installation were deposited
into a utility company account for that purpose.
The second pertinent adverse order was issued by Judge
Garner on November 21, 2016, following a hearing. Plaintiff
alleges he filed a motion in October 2016 seeking to enjoin
Murphy from directing contractors to finish installing
electrical service on the Campton property. The November 21,
2016 Order, see Doc. No. 2, at 7-9 (“November 21 Order”), states
that the parties to the family court proceeding agreed Murphy
could complete the work to provide electrical service to the
property and specifically provides that Murphy is entitled to
use the balance in the utility account to complete that work.
The third adverse order is Judge Garner’s November 28, 2016
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order denying, in pertinent part, plaintiff’s motion to
reconsider the November 21 Order. See Order, Divorce Case (Nov.
28, 2016) (Doc. No. 2, at 17) (“November 28 Order”).
Plaintiff’s motion to reconsider specifically requested that the
family court prevent Murphy from completing the electrical hook-
up on the Campton property, until the New Hampshire Supreme
Court reviewed plaintiff’s appeal of the November 21 Order,
which plaintiff had not yet filed. The November 28 Order does
not grant plaintiff the injunction he requested.
Plaintiff next filed this case in federal court,
collaterally challenging each of those three state court orders.
Plaintiff alleges that the November 2015 Order (enjoining him
from installing power on the Campton property) violated his
right to equal protection; and that both the November 21 and
November 28 Orders violated his due process rights and effected
a taking of his property, as, plaintiff speculates, the power
installation work could be completed in a manner adversely
affecting his property rights, before the New Hampshire Supreme
Court will have time to consider an appeal. In this court,
plaintiff seeks: 1) injunctive relief, to prevent Murphy from
completing the electrical utility work on the Campton property,
and 2) a mandate allowing plaintiff to “undo” any work that has
been completed, at Murphy’s cost.
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A docket summary prepared by the N.H. Circuit Court, Family
Division, indicates that on February 8, 2017, final orders were
issued in the divorce case on a number of motions, including a
motion for contempt. The docket summary indicates that the
court closed that case on that date.
III. Discussion
A. Younger Abstention
Younger abstention provides a basis for dismissing this
action, to the extent there are any issues remaining pending in
the divorce proceeding, including any appeal of matters in that
action. While the case appears to have been closed in the
Circuit Court, Family Division, on February 8, 2017, plaintiff
has pleaded facts here indicating that he would appeal the
adverse orders in the New Hampshire Supreme Court. Nothing in
the record before this court suggests that plaintiff abandoned
that plan and neither filed, nor will file, a timely appeal in
the New Hampshire Supreme Court.
Under Younger v. Harris, 401 U.S. 37 (1971),
federal courts are required to abstain from enjoining
ongoing state court proceedings absent extraordinary
circumstances. . . . Under Younger, a federal court must
abstain “if (1) there is an ongoing state judicial
proceeding involving the federal plaintiff that (2)
implicates [certain] important state interests and (3)
provides an adequate opportunity for the federal plaintiff
to assert his federal claims.”
Colonial Life & Acc. Ins. Co. v. Medley, 572 F.3d 22, 26 (1st
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Cir. 2009) (citations omitted); see also Sprint Commc’ns, Inc.
v. Jacobs, 134 S. Ct. 584, 591 (2013) (Younger may apply in
“‘civil proceedings involving certain orders . . . uniquely in
furtherance of the state courts’ ability to perform their
judicial functions’” (citation omitted)); Sirva Relocation, LLC
v. Richie, 794 F.3d 185, 192 (1st Cir. 2015) (Younger applies to
proceedings “that implicate a State’s interest in enforcing the
orders and judgments of its courts” (citation omitted)). When
Younger applies, abstention is mandatory, and the federal court
is deprived of any discretion to grant injunctive relief. See
Colo. River Water Conserv. Dist. v. United States, 424 U.S. 800,
816 n.22 (1976).
The divorce case, in pertinent part, was pending in the
Circuit Court, Family Division, at the time plaintiff filed this
action. A series of motions in that matter remained unresolved
until February 8, 2017, when the court in that case issued an
order closing the case. Plaintiff’s pleadings here indicate
plaintiff intended to file an appeal in the New Hampshire
Supreme Court, and nothing in the record suggests that plaintiff
abandoned that plan. Accordingly, to the extent either party in
the divorce case has filed additional motions since February 8,
2017, or any party has filed an appeal in the New Hampshire
Supreme Court that remains pending at this time, the first
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Younger factor is satisfied.
As to the remaining factors, the divorce proceeding
implicates important state interests in distributing property
and implementing procedures for resolving matters at issue in
the divorce case. The Younger abstention doctrine applies here,
as the relief plaintiff seeks is an injunction that would
interfere with the rights adjudicated in the proceeding between
divorced parties, relating to an order assigning control over
funds to Murphy. Rogers’s request for injunctive relief would
target, and substantially interfere with, the family court’s
order allowing Murphy to access certain funds to perform work
authorized by that court’s order. Plaintiff has an adequate
opportunity in that case to raise his federal constitutional
claims of discrimination and/or due process violations in the
state proceedings, in both the Circuit Court and, on appeal, in
the New Hampshire Supreme Court. Rogers has failed to make a
sufficient showing of bad faith or other extraordinary
circumstances that would warrant this court’s exercise of its
equitable powers in a manner that would alter the orders issued
in that case.
To the extent that all three Younger factors are present in
the instant case, this court’s abstention would be mandatory.
Rogers’s claims for injunctive relief, seeking to stay or
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otherwise enjoin the family court’s disposition of the divorce
case, should be dismissed.
B. Judicial Immunity
Rogers’s claims concerning violations of his Fourteenth
Amendment rights in the divorce case are construed as intending
to state claims under 42 U.S.C. § 1983 against the presiding
judge, relating to orders issued in the divorce case. Plaintiff
specifically requests injunctive relief.
Section 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; see also Adames v. Fagundo,
198 F. App’x 20, 22 (1st Cir. 2006). Rogers’s claims asserted
against Judge Garner concern judicial acts. Rogers has not
shown that any declaratory decree has been violated, or that
declaratory relief is unavailable. Accordingly, Rogers’s
injunctive relief claims asserted under § 1983 against Judge
Garner should be dismissed.2
2Rogers has not asserted a § 1983 claim for damages against
the judge he has named as a defendant. Nor could he, based on
the allegations at issue. A family court judge’s issuance of an
order relating to property in a divorce case is judicial act,
within that court’s jurisdiction. Absolute immunity, precluding
a suit at the outset, applies to “any normal and routine
judicial act” undertaken within the scope of the judge’s
jurisdiction, “no matter how erroneous the act may have been,
how injurious its consequences, how informal the proceeding, or
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Conclusion
For the foregoing reasons, the district judge should
dismiss this action 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
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
February 15, 2017
cc: Kevin J. Rogers, pro se
how malicious the motive.” Cok v. Cosentino, 876 F.2d 1, 2 (1st
Cir. 1989).
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