Phillips v. Governor, NH, State of et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
William Phillips
v. 	Civil No. 18-cv-215-JL
N.H. Governor Chris Sununu; N.H. Department
of Health & Human Services Commissioner
Jeffrey A. Meyers; N.H. Division of Child
Support Services Attorney Peggy Ann Rossing;
N.H. Circuit Court, Ninth Circuit, Family
Division-Merrimack Clerk of Court Lynn
Killkelley; Lisa Curtis; and Attorney Edward
Richards, Lydon & Richards, P.C.
REPORT AND RECOMMENDATION
Pro se plaintiff William Phillips, has filed addenda (Doc.
Nos. 6, 8, 10, 11, 15) to his original complaint (Doc. No. 1),
in response to the court’s May 9, 2018 Order (Doc. No. 5). 	The
complaint and addenda are before the court for preliminary
review. 	See 28 U.S.C. § 1915(e)(2); LR 4.3(d)(2). 	Also before
the court is a motion for a preliminary injunction (Doc. No. 9),
which has been referred to the undersigned magistrate judge for
a report and recommendation. 	See Aug. 20, 2018 Order.
Background
This action relates to a state proceeding, In re Phillips &
Curtis, No. 226-2008-DM-01185 (N.H. Cir. Ct., 9th Cir., Family
Div., Merrimack) (“In re Phillips & Curtis”), pending in family
court in Merrimack, New Hampshire (“Merrimack Family Court”), in
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which plaintiff was found to be liable for unpaid child support
arrearages dating back to 2011/2012. 	See Aug. 15, 2017 Order,
In re Phillips & Curtis (Doc. No. 6-1, at 24). 	In December
2016, the New Hampshire Department of Health and Human Services
(“DHHS”) Division of Child Support Services (“DCSS”) certified
that the amount of unpaid child support then exceeded
$29,500.00. 	See DHHS DCSS Dec. 14, 2016 Ltr. to Lisa Curtis and
Financial Statement (Doc. No. 6-1, at 10, 11). 	Phillips alleges
here that a claim for $33,000.00 in unpaid child support was
asserted against him in state court in 2017/2018.
Plaintiff asserts that he became disabled in 2011. 	The
Disability Determination Unit of the DHHS Division of Community
Based Care Services denied his application for assistance under
the Aid to the Permanently and Totally Disabled (“APTD”) program
in August 2011, see Doc. No. 6-1, at 6, and sometime thereafter
he began to receive disability benefits from a private insurer.
Plaintiff asserts that beginning in 2011, DCSS garnished his
disability benefits to pay child support arrearages, and that
the garnishment ended when he began to receive Supplemental
Security Income (“SSI”) in late 2012.
In 2017, the mother of his children, Lisa Curtis, through
counsel, filed a motion in In re Phillips & Curtis, seeking to
have Phillips held in contempt of court for failing to pay child
support. 	Phillips asserts he contacted the Merrimack Family
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Court in 2017, expecting that the proceedings initiated by
Curtis would be closed when he provided proof to that court that
he had been receiving SSI. 	The court did not close the case,
and, he asserts, a court employee taunted him in the clerk’s
office by calling out a question as to why he had not paid child
support. 	After an August 2017 hearing on the motion for
contempt, the Merrimack Family Court ordered Phillips to direct
the private insurer to pay $700 per month of his long term
disability benefits to Curtis’s counsel, to pay off the
arrearages. 	See Aug. 15, 2017 Order, In re Phillips & Curtis
(Doc. No. 6-1, at 24). 	Phillips filed an appeal of that order
to the New Hampshire Supreme Court (“NHSC”). 	The NHSC declined
Phillips’s appeal in January 2018. 	See In re Phillips, No.
2017-0523 (N.H. Jan. 17, 2018) (Doc. No. 6-2, at 5).
Curtis, through counsel, filed a renewed motion in In Re
Phillips & Curtis in 2018, seeking to have Phillips held in
contempt of court. 	The Merrimack Family Court has directed
Phillips to file documentation regarding his long-term
disability benefits and has scheduled a show cause hearing on
the motion for contempt for August 28, 2018.
Claims
Phillips asserts the following claims for relief here:
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1. 	The defendant state agencies violated Phillips’s
federal rights, giving rise to liability under 42 U.S.C.
§ 1983, by:
A. denying him APTD benefits refused to him in 2011;
and
B. garnishing Phillips’s disability benefits from 2011
until he began to receive SSI.
2. 	Merrimack Family Court Clerk Lynn Killkelley violated
plaintiff’s Fourteenth Amendment rights to due process and
equal protection in 2017, in that:
A. The court clerk failed to close Lisa Curtis’s
proceedings against Phillips upon receiving proof in
the clerk’s office that Phillips received SSI;
B. A clerk’s office employee whited out a portion of
Judicial Referee Alice Love’s August 9, 2017
recommended order, after Phillips filed an appeal
relating to that order;
C. The court clerk did not file certain exhibits that
Phillips presented in the clerk’s office; and
D. A clerk’s office employee berated Phillips by asking
why he did not pay the arrearages.
3. 	Lisa Curtis and her counsel: violated Phillips’s
rights under the federal Fair Debt Collection Act, made
false and misleading representations, and engaged in unfair
and deceptive practices in violation of state law, in
litigating a claim for unpaid child support arrearages in
the Merrimack Family Court case.
4. 	DHHS Commissioner Jeffrey Meyers and DHHS Staff
Attorney Peggy Rossing violated plaintiff’s federal rights
by certifying and/or failing to reduce the arrearages at
issue, which accrued while Phillips was receiving SSI and
disability benefits.
5. 	Defendant Governor Sununu is liable for breaching his
oath of office and for failing to perform duties under the
New Hampshire Constitution.
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Discussion
I. 	Preliminary Review1
A. 	Eleventh Amendment
Phillips has asserted claims for damages and injunctive
relief against state agencies and state officers in their
official capacities. 	His claims for damages and injunctive
relief against each state agency, and his claims for damages
against state officers in their official capacities are barred
by the Eleventh Amendment and should be dismissed. 	See Town of
Barnstable v. O’Connor, 786 F.3d 130, 138 (1st Cir. 2015).
B. 	State Action Occurring before 2013 (Claim 1)
Phillips alleges that state officers violated his federal
rights by garnishing income he received prior to 2013, while he
was receiving disability benefits, and by denying him APTD
benefits in 2011. 	Phillips has filed an exhibit indicating that
the garnishment ended in November/December 2012. 	See Doc. No.
6-1, at 11, 12. 	Phillips’s claims of violations of his federal
rights, arising under 42 U.S.C. § 1983, relating to a state
decision that occurred in 2011 and a garnishment that ended
prior to 2013, are barred by the applicable three-year statute
1The standard applied by this court in conducting the
preliminary review of the complaint documents and addenda is set
forth in the May 9, 2018 Order (Doc. No. 5).
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of limitations. 	See Gorelik v. Costin, 605 F.3d 118, 121 (1st
Cir. 2010). 	Accordingly, Claim 1 should be dismissed.
C. 	Clerk of Court (Claim 2)
1. 	Absolute Immunity (Claims 2(a), 2(b), 2(c))
Phillips asserts in Claim 2(a) that Merrimack Family Court
Clerk Lynn Killkelley is liable for damages for conduct
undertaken by that court’s staff that Phillips asserts violated
his federal rights, including his rights under the Fourteenth
Amendment. 	Specifically, Phillips asserts that the court did
not dismiss a contempt proceeding initiated against him in 2017,
even though Phillips produced evidence in the clerk’s office
that he was an SSI recipient. 	Phillips further asserts in
Claims 2(b) and 2(c) that the clerk’s office did not accept
certain exhibits he submitted for filing, and that an unknown
court employee whited out part of Judicial Referee Love’s August
9, 2017 recommended order, which Phillips asserts concerned N.H.
Rev. Stat. Ann. (“RSA”) § 161-C:5. 	He asserts that the deletion
was intended “to aid the defendants in the Public safety appeal
. . . in the New Hampshire Supreme Court.”2 	Am. Compl. (Doc. No.
2In response to this court’s order directing Phillips to
clarify the nature of his claims, Phillips has produced two
separate August 9, 2017 recommended orders signed by Judicial
Referee Alice Love. 	Only one of those orders matches the
description of the alleged altered court document. 	See Aug. 15,
2017 Order, In re Phillips & Curtis, slip op. at 2 (Doc. No. 6-
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6, at 5). 	Phillips’s filings here do not clarify precisely what
specific language he alleges was whited out, but Phillips
maintains that the deletion affected his ability to file an
appeal in the NHSC.
Absolute immunity protects judges from “civil liability for
any normal and routine judicial act,” except those taken in the
“clear absence of all jurisdiction.” 	Cok v. Cosentino, 876 F.2d
1, 2 (1st Cir. 1989) (citing Stump v. Sparkman, 435 U.S. 349,
357 (1978)). 	Judicial immunity from claims for damages “applies
no matter how erroneous the act may have been, how injurious its
consequences, how informal the proceeding, or how malicious the
motive.” 	Cok, 876 F.2d at 2.
Absolute quasi-judicial immunity bars claims for damages
against court personnel performing discretionary functions
1, at 26). 	Identified as Exhibit 11 by plaintiff, see id.,
Judicial Referee Love’s August 9, 2017 recommended “Order on
Motion for Contempt for Unpaid Child Support and Motion for
Attachment of Benefit, et al.,” includes seven numbered
paragraphs and a blank space following Paragraph 7, where
Phillips asserts missing Paragraph 8 was whited out, above
Judicial Referee Love’s August 9, 2017 signature and Judge
Michael Ryan’s August 15, 2017 endorsement. 	This court’s record
does not include any other version of that order which includes
an eighth numbered paragraph. 	The second August 9, 2017
recommended order filed as an exhibit here (identified by
Phillips as Exhibit 10), see Doc. No. 6-1, at 24, does not
include any numbered paragraphs. 	The part of that order that is
in this court’s record includes Judicial Referee Love’s
initialed alterations and deletions in a proposed order prepared
by Curtis’s counsel, which Judicial Referee Love signed on
August 9, 2017, and Judge Ryan issued through an endorsed order
on August 15, 2017, see Doc. No. 6-1, at 24.
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closely related to the judicial process. 	See id.; see also
Gallas v. Sup. Ct., 211 F.3d 760, 772–73 (3d Cir. 2000). 	Such
“immunity applies to all acts of auxiliary court personnel that
are ‘basic and integral part[s] of the judicial function,’
unless those acts are done ‘in the clear absence of all
jurisdiction.’” 	Sindram v. Suda, 986 F.2d 1459, 1461 (D.C. Cir.
1993) (citation omitted). 	Such immunity operates “where the
need for liability in damages is low,” given the safeguards
built into the judicial process, “and the need for a backstop to
judicial immunity [is] high,” to avoid the risk that
disappointed litigants, unable to sue judges, would “‘vent their
wrath on clerks, court reporters, and other judicial adjuncts.’”
Id. (citations omitted).
A clerk’s decision not to terminate proceedings at the
request of a party who produces evidence in the clerk’s office
and communications regarding how such evidence may be filed
implicates critical functions of the clerk’s office with respect
to the management of evidence for, and maintenance of cases in
the court’s docket. 	Those functions are integral to the
judicial process. 	Similarly, the clerk’s publication of the
contents of trial court orders is a task that is integral to the
judicial process. 	See Ives v. Agastoni, No. CV 15-30153-MAP,
2015 U.S. Dist. LEXIS 173910, at *9, 2015 WL 9647559, at *3 (D.
Mass. Dec. 14, 2015) (“accepting filings” and “recording
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rulings” are judicial functions “regularly performed by judges
and clerks within the scope of their jurisdiction”), R&R
adopted, No. 15-CV-30153-MAP, 2016 U.S. Dist. LEXIS 1070, 2016
WL 79881 (D. Mass. Jan. 5, 2016). 	Phillips’s claims for damages
relating to those matters fall within the scope of the court
clerk’s absolute immunity. 	For that reason, Claims 2(a), 2(b),
and 2(c) should be dismissed.
2. 	Claim 2(d)
In Claim 2(d), Phillips asserts that an unidentified
employee in the Merrimack Family Court berated him by calling
out when he appeared in the clerk’s office, something to the
effect of “Why don’t you pay her?” 	Phillips seeks damages for
alleged violations of his rights to due process and equal
protection relating to that comment.
To state an actionable due process claim, a plaintiff must
assert facts showing that he has suffered a deprivation of a
protected interest in life, liberty, or property. 	See Mathews
v. Eldridge, 424 U.S. 319, 332 (1976). 	Phillips has not alleged
any facts suggesting that the comment about his failure to pay
deprived him of any protected interest.
To state a claim that state action violates substantive due
process, a plaintiff must allege facts showing that the state
actor’s conduct “objectively ‘shocks the conscience.’” 	S.
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Commons Condo. Ass’n v. Charlie Arment Trucking, Inc., 775 F.3d
82, 91 (1st Cir. 2014) (citation omitted). 	“‘[T]he requisite
arbitrariness and caprice must be stunning, evidencing more than
humdrum legal error,’” id. (citation omitted); even bad faith is
not necessarily enough. 	Id. at 93. 	Absent any indication of
how the comment affected Phillips’s ability to litigate
meritorious issues or otherwise deprived him of a protected
liberty or property interest, Phillips’s allegations regarding
Claim 2(d) do not implicate the type of state action that could
give rise to a viable substantive due process claim.
Accordingly, Claim 2(d) should be dismissed to that extent.
To establish an equal protection claim, a plaintiff needs
to allege facts showing that “‘(1) the [plaintiff], compared
with others similarly situated, was selectively treated; and (2)
that such selective treatment was based on impermissible
considerations such as race, religion, intent to inhibit or
punish the exercise of constitutional rights, or malicious or
bad faith intent to injure’” the plaintiff. 	Davis v. Coakley,
802 F.3d 128, 132-33 (1st Cir. 2015) (citations omitted).
Phillips has not pleaded facts showing that he is a member of
any suspect class, and he has not pleaded any non-conclusory
facts to state a claim that he was singled out for different
treatment based on any malicious intent to cause him injury,
with respect to the single remark at issue. 	See Ooley v. Citrus
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Heights Police Dep’t, 603 F. App’x 628, 629 (9th Cir. 2015)
(standing alone, “stray remarks are insufficient to establish
discrimination”). 	Accordingly, Claim 2(d), asserting equal
protection violations, should be dismissed for failure to state
a claim upon which relief can be granted.
D. 	Younger Abstention (Claims 3, 4)
Claims 3 and 4 in this case implicate the Younger
abstention doctrine. 	Under Younger v. Harris, 401 U.S. 37
(1971), federal courts are generally required to abstain from
enjoining or issuing declaratory relief that would affect
ongoing state criminal prosecutions, ongoing state civil
enforcement proceedings that resemble prosecutions, and other
types of ongoing civil proceedings that “‘implicate a State’s
interest in enforcing the orders and judgments of its courts,’”
absent extraordinary circumstances, Sirva Relocation, LLC v.
Richie, 794 F.3d 185, 192 (1st Cir. 2015) (quoting Sprint
Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 588 (2013)), if the
proceeding (1) is “judicial in nature,” (2) “implicates
important state interests,” and (3) provides an adequate
opportunity for the federal plaintiff to assert his federal
claims or defenses. 	Sirva Relocation, 794 F.3d at 196; see also
Colonial Life & Acc. Ins. Co. v. Medley, 572 F.3d 22, 26 (1st
Cir. 2009). 	When Younger applies, abstention is mandatory, and
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the federal court is deprived of any discretion to grant
injunctive or declaratory relief, unless an exception to Younger
applies. 	See Colo. River Water Conserv. Dist. v. United States,
424 U.S. 800, 816 n.22 (1976); Sirva Relocation, 794 F.3d at
192. 	The few extraordinary circumstances where abstention is
not required include state proceedings brought in bad faith for
purposes of harassment, state cases in which the state forum
provides inadequate protection of federal rights, and
circumstances where the state statute at issue in the
proceedings is “‘flagrantly and patently violative of express
constitutional prohibitions.’” 	Sirva Relocation, 794 F.3d at
192 (citations omitted).
Here, the underlying state proceeding is a contempt
proceeding, to which Younger applies, as it implicates the
state’s ability to enforcement its orders and judgments. 	The
Younger abstention doctrine limits this court’s further
consideration of Claims 3 and 4, as this court’s consideration
of their merits would interfere with that important state court
interest. 	Moreover, Phillips has had an adequate opportunity to
raise the same issues he asserts in Claims 3 and 4 in the state
case, and he can appeal adverse orders to the NHSC. 	Phillips
has not made a showing of bad faith or other extraordinary
circumstances that could exempt this case from abstention.
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Where a federal plaintiff seeks only injunctive or
declaratory relief, dismissal without prejudice is the
appropriate means of abstaining under Younger. 	But where the
relief requested includes damages, Younger abstention is
appropriately effected through a stay of the claims for damages.
See Rossi v. Gemma, 489 F.3d 26, 38 (1st Cir. 2007). 	To the
extent Claims 3 and 4 seek damages, those claims are properly
stayed until the pending contempt proceedings are concluded,
including any appeals arising out of those proceedings.
E. 	Governor Sununu (Claim 5)
Phillips asserts that Governor Chris Sununu is liable for
violating his oath of office and failing to perform duties under
the New Hampshire Constitution. 	Phillips has failed to state a
claim upon which relief can be granted against Governor Sununu,
as neither the state constitution nor the governor’s oath of
office gives rise to a private right of action for the matters
alleged by Phillips. 	Accordingly, Claim 5 should be dismissed
for failure to state a claim upon which relief can be granted.
II. 	Motion for Injunction (Doc. No. 9)
Phillips has moved for an injunction ordering the state to
cease all child support collection activity, including the
pending contempt proceedings in the Merrimack Family Court. 	The
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Younger abstention doctrine bars plaintiff from seeking such
relief. 	As plaintiff has not demonstrated a likelihood of
success on the merits of any claim in this case, and the request
for an injunction ordering the cessation of the pending
Merrimack Family Court proceedings is precluded by Younger, the
motion for an injunction (Doc. No. 9) should be denied. 	See
Glossip v. Gross, 135 S. Ct. 2726, 2736 (2015) (showing of
likelihood of success on merits is prerequisite to obtain
preliminary injunctive relief).
Conclusion
For the foregoing reasons, the district judge should DENY
the motion for preliminary injunctive relief (Doc. No. 9);
DISMISS Claims 1, 2, and 5; DISMISS all claims asserted against
the state agencies and state officials in their official
capacities; DROP Merrimack Family Court Clerk Lynn Killkelley
and Governor Chris Sununu as defendants; and STAY further
consideration of Claims 3 and 4, as numbered in this Report and
Recommendation, to the extent Phillips seeks damages on those
claims, until a final decision has been issued in the relevant
state court proceedings, following a ruling on the matters at
issue in the show cause hearing presently scheduled for August
28, 2018, and any pertinent appeal that may ensue.
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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 specific written objections to the
Report and Recommendation 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
August 29, 2018
cc: 	William Phillips, pro se
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