Henderson v. Del Carmen Gil et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Toby J. Henderson
v. 	Case No. 22-cv-332-JL
Maria Del Carmen Gil et al.
REPORT AND RECOMMENDATION
Pro se plaintiff, Toby J. Henderson, filed a motion for
expedited ruling (Doc. No. 2), an expedited motion to return
minor children (Doc. No. 5), and a petition for expedited
enforcement of a foreign child custody order (Doc. No. 6). 	The
court construes these filings as requests for preliminary
injunctive relief because Mr. Henderson seeks an order awarding
him custody of his children and overturning a New Hampshire
state court ruling that divested him of custody of his children.
The district judge has referred the requests for preliminary
injunctive relief to the undersigned magistrate judge for a
report and recommendation. 	See Oct. 18, 2022 Order.
Background
Mr. Henderson lives on a farm in Stratford, New Hampshire.
His two minor children were living with him on the farm until
sometime in 2021 or 2022, when, he asserts, state agents
searched his home, pursuant to a search warrant, and
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subsequently 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.
In addition, Mr. Henderson alleges that a New Hampshire
state court granted Defendant Maria Del Carmen Gil, the mother
of his children, certain relief, including custody of their
children, based upon pleadings that also included false
information. 	Mr. Henderson further alleges that the day after
his children were removed from his home, Ms. Del Carmen Gil
failed to appear at a scheduled hearing where, he claims, he
would have been able to disprove the allegations against him,
which underlay the search warrant and Ms. Del Carmen Gil’s
pleadings. 	According to Mr. Henderson, Ms. Del Carmen Gil fled
the state with the children, which resulted in the hearing being
cancelled, and thereby deprived him of any opportunity to
contest her petition for relief.1 	Mr. Henderson states that his
children are now living with Ms. Del Carmen Gil, her adult son,
1 Mr. Henderson states that a warrant for Ms. Del Carmen
Gil’s arrest issued when she failed to appear in the New
Hampshire court concerning this matter, but that the warrant has
since been vacated.
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and another adult in Tennessee (who Mr. Henderson claims is a
felon).
Mr. Henderson asserts that court proceedings relevant to
the custody of his children took place in Tennessee after Ms.
Del Carmen Gil fled New Hampshire. 	Mr. Henderson states that he
had an opportunity to appear at those proceedings via
videoconference, through counsel, but that he was unable to
obtain custody of his children. 	Mr. Henderson further asserts
that a Tennessee court has issued a restraining order, which has
interfered with his ability to have any contact with his
children.
Liberally construed, in light of the plaintiff’s pro se
status, Mr. Henderson’s complaint (Doc. No. 1) and complaint
addendum (Doc. No. 1-3) appear to assert federal claims in this
matter under 42 U.S.C. § 1983. 	Specifically, Mr. Henderson
alleges that the search warrant was improperly issued because it
was based upon false statements contained in the warrant
affidavit.2 	Without those false statements, he alleges, the
warrant application did not support a finding of probable cause
to search his home, and thus the search of his home violated his
2 Preliminary review pursuant to LR 4.3(d)(3) has not yet
been completed, and thus the Court has not yet identified a
comprehensive list of the claims Mr. Henderson appears to have
asserted in this matter.
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Fourth Amendment rights.3 	Also, Mr. Henderson appears to assert
claims alleging violations of his First Amendment rights to
familial association and to parent his children,4 and a claim
that the child custody order, which assigned sole custody of his
children to their mother, was fundamentally unfair and violated
his Fourteenth Amendment right to due process because the order
issued before he had any opportunity to be heard.5
3 The Fourth Amendment provides that “no warrants shall
issue, but upon probable cause, supported by oath or affirmation
. . . .” 	U.S. Const. amend. IV. 	The use of a false statement
to obtain a warrant violates the Fourth Amendment if: (1) the
use of the false statement is knowing and intentional, or made
with reckless disregard for the truth; and (2) the false
statement is necessary for a finding of probable cause. 	Franks
v. Delaware, 438 U.S. 154, 155-56 (1978); Aponte Matos v. Toledo
Dávila, 135 F.3d 182, 187 (1st Cir. 1998); cf. Manuel v. City of
Joliet, 137 S. Ct. 911, 918 (2017) (noting that a Fourth
Amendment constitutional violation can occur “when the legal
process itself goes wrong—when, for example, a judge’s probable-
cause determination is predicated solely on a police officer’s
false statements.”).
4 “[T]he Supreme Court has recognized an abstract
fundamental liberty interest in family integrity. 	That interest
typically arises in cases concerning parents’ rights to decide
the care, custody and control of their children.” 	Connor B. ex
rel. Vigurs v. Patrick, 774 F.3d 45, 58 (1st Cir. 2014)
(internal quotation marks and citations omitted).
5 “‘[T]he interest of parents in their relationship with
their children is sufficiently fundamental to come within the
finite class of liberty interests protected by the Fourteenth
Amendment.” 	Santosky v. Kramer, 455 U.S. 745, 774 (1982).
Parents’ liberty interest in the care, custody, and control of
their children “is protected both by the substantive component of
the Due Process Clause, which constrains governmental
interference with certain fundamental rights and liberty
interests, and by the procedural component of the Due Process
Clause, which guarantees ‘fair process.’” 	Suboh v. Dist.
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Discussion
I. 	Preliminary Injunction Standard
“‘A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits,” of the
claims in his action, “that he is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the
public interest.’” 	Glossip v. Gross, 576 U.S. 863, 876
(2015) (citation omitted). 	Likelihood of success and
irreparable harm are the factors that weigh most heavily in the
analysis. 	See Esso Std. Oil Co. v. Monroig–Zayas, 445 F.3d 13,
18 (1st Cir. 2006); see also Voice of the Arab World, Inc. v.
MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011). 	The
burden of proof is on the movant. 	See Esso Std. Oil, 445 F.3d
at 18.
Mr. Henderson seeks a mandatory preliminary injunction that
alters, rather than preserves, the status quo. 	Mandatory
preliminary injunctions “should be granted only in those
circumstances when the exigencies of the situation demand such
relief.” 	Braintree Labs., Inc. v. Citigroup Global Mkts. Inc.,
622 F.3d 36, 41 (1st Cir. 2010) (citation omitted). 	The
Att’y’s Off., 298 F.3d 81, 91 (1st Cir. 2002) (citation
omitted).
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exigencies of the situation, however, are still measured
according to the same four-factor test. 	Id.
II. 	Likelihood of Success
Mr. Henderson’s motion for expedited ruling (Doc. No. 2),
expedited motion to return minor children (Doc. No. 5), and
“petition for expedited enforcement of foreign child custody
order”6 (Doc. No. 6) all seek the same preliminary or permanent
injunctive relief from this court: a federal court order
granting him custody of his children. 	The court considers Mr.
Henderson’s likelihood of success with respect to this requested
relief, as opposed to the merits of his underlying claims, which
include a request for damages. 	See Kosilek v. Misi, No. 18-cv-
11838-DLC, 2022 WL 4468372, at *4 (D. Mass. Sept. 26, 2022) (“A
party who moves for a preliminary injunction ‘must necessarily
establish a relationship between the injury claimed in the
party’s motion and the conduct asserted in the complaint.’”
(citations omitted)); see also Pac. Radiation Oncology, LLC v.
6 The petition for expedited enforcement of foreign child
custody order indicates that a proceeding is pending in state
court in Tennessee, but that petition does not include as an
attachment any out-of-state child custody order. 	The contents
of all of Mr. Henderson’s pleadings in this case suggest a
likelihood that neither the court in Tennessee, nor any other
state court, has issued an order granting Mr. Henderson custody
over his children.
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Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015) (“The
relationship between the preliminary injunction and the
underlying complaint is sufficiently strong where the
preliminary injunction would grant ‘relief of the same character
as that which may be granted finally.’” (quoting De Beers
Consol. Mines v. U.S. Societe Internationale Forestiere et
Miniere du Congo, 325 U.S. 212, 220 (1945))).
A. Rooker-Feldman Doctrine
Pursuant to the Rooker-Feldman doctrine, “lower federal
courts are precluded from exercising appellate jurisdiction over
final state-court judgments.” 	Tyler v. Sup. Jud. Ct., 914 F.3d
47, 50 (1st Cir. 2019) (quoting Lance v. Dennis, 546 U.S. 459,
463 (2006)).
The [Rooker-Feldman] doctrine prevents losing
litigants “from seeking what in substance would be
appellate review of the state judgment in a United
States district court, based on the losing party’s
claim that the state judgment itself violates the
loser’s federal rights,” as only the Supreme Court has
jurisdiction to review the decision of a state court
in civil litigation.
Efreom v. McKee, 46 F.4th 9, 17 (1st Cir. 2022) (quoting Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284
(2005)). 	The application of the doctrine turns on whether the
plaintiff’s federal suit is “in effect, an end-run around a
final state court judgment.” 	Klimowicz v. Deutsche Bank Nat’l
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Tr. Co., 907 F.3d 61, 66 (1st Cir. 2018); see also Mandel v.
Town of Orleans, 326 F.3d 267, 271-72 (1st Cir. 2003) (vacating
a preliminary injunction order concerning child custody under
the Rooker-Feldman doctrine and noting that the doctrine
generally prevents a parent from attempting to invalidate a
child custody order in federal district court).
Under the Rooker-Feldman doctrine, this court lacks subject
matter jurisdiction to review and reverse a state court’s child
custody order, to the extent it is a final judgment. 	Where Mr.
Henderson expressly seeks the reversal of a child custody order
on an expedited basis from this court, such relief is precluded
by the Rooker-Feldman doctrine. 	If the state court judgment is
final with regard to custody, a finding that this court lacks
jurisdiction to grant the relief Mr. Henderson seeks is
warranted. 	Accordingly, to the extent Mr. Henderson is
challenging a final state court judgment, he has failed to
demonstrate that he is likely to succeed on the merits of his
claims because the court lacks jurisdiction over his claims for
injunctive relief asserted in this action.
B. Younger Abstention Doctrine
The Younger doctrine, as described in Younger v. Harris,
401 U.S. 37 (1971), “counsels federal-court abstention when
there is a pending state proceeding.” 	Amadi v. Dep’t of Child.
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& Fams., 245 F. Supp. 3d 316, 320 (D. Mass. 2017) (quoting Moore
v. Sims, 442 U.S. 415, 423 (1979)).
The First Circuit has identified a three-step analysis
to determine whether Younger applies. 	First, the
state proceeding must be a criminal prosecution, civil
enforcement proceeding or a civil proceeding “uniquely
in the furtherance of the state courts' ability to
perform their judicial functions.” 	Second, the case
must meet the three Middlesex7 factors: 1) the state
proceeding is ongoing, 2) it involves significant
state interests and 3) it permits the plaintiff to
raise his federal claims. 	Finally, courts consider
whether exceptions to Younger apply. 	For instance, if
the state proceeding is brought “in bad faith” to
harass, or there is “concrete evidence” of
bias, abstention is not warranted. 	If a case meets
all three prongs of the Younger analysis, federal
courts must abstain from exercising jurisdiction even
if the plaintiff asserts that important federal rights
are at issue.
Amadi, 245 F. Supp. 3d at 320–21 (internal citations omitted).
Exceptions to the Younger doctrine may apply in situations
of “bad faith, harassment, or any other unusual circumstances
that would call for equitable relief.” 	Bettencourt v. Bd. of
Registration in Med., 904 F.2d 772, 779 (1st Cir. 1990). 	“These
exceptions have been very narrowly construed by the [Supreme]
Court.” 	United Books, Inc. v. Conte, 739 F.2d 30, 34 (1st Cir.
1984) (internal citations omitted); see also C. Wright, A.
Miller, Federal Practice and Procedure § 4255 (3d ed.) (“There
is no case since Younger was decided in which the [Supreme]
7 See Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n,
457 U.S. 423, 432 (1982).
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Court has found that the exception for bad faith or harassment
was applicable[,]” and “[l]itigants who have sought to bring
themselves within the exceptions to Younger have had almost as
little success in the lower courts.”).
A child custody proceeding implicates important state
interests and is likely to provide Mr. Henderson with a fair
opportunity to raise his federal defenses. 	See Sirva
Relocation, LLC v. Richie, 794 F.3d 185, 189 (1st Cir. 2015)
(regarding prerequisites for abstention under Younger); see also
Ankenbrandt v. Richards, 504 U.S. 689, 705-06 (1992) (discussing
in dicta circumstances where abstention under Burford v. Sun Oil
Co., 319 U.S. 315 (1943), might apply in cases related to child
custody or domestic relations). 	Further, at this stage of the
proceeding, the record does not demonstrate that any exceptions
to the application of the Younger doctrine are likely to apply.
Accordingly, if the child custody matter is ongoing,
abstention is likely appropriate here, pursuant to the Younger
doctrine, and Mr. Henderson’s claims for injunctive relief are
subject to dismissal (without prejudice). 	Accordingly, to the
extent that the state child custody proceedings in question here
are ongoing, Mr. Henderson has failed to demonstrate that he is
likely to succeed on the merits of his claims for injunctive
relief before this Court.
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III. Irreparable Harm
Mr. Henderson alleges that he will suffer irreparable harm
if the Court does not issue the requested injunctive relief, as
he will be deprived of the custody of his children. 	Assuming,
without deciding, that Mr. Henderson could satisfy his burden of
showing irreparable harm, such a finding cannot overcome Mr.
Henderson’s inability to show a likelihood of success on the
merits of his claims for injunctive relief. 	See Maine Educ.
Ass'n Benefits Tr. v. Cioppa, 695 F.3d 145, 152 (1st Cir. 2012)
(“[I]f the moving party cannot demonstrate that he is likely to
succeed in his quest, the remaining factors become matters of
idle curiosity.” (citation omitted)); see also Esso Std. Oil,
445 F.3d at 18 (declining to address the remaining preliminary
injunction factors when the moving party had not shown a
substantial likelihood of success).
Conclusion
For the foregoing reasons, the district judge should deny
the motion for expedited ruling (Doc. No. 2), expedited motion
to return minor children (Doc. No. 5), and petition for
expedited enforcement of foreign child custody order (Doc. No.
6), without prejudice to Mr. Henderson’s ability to litigate the
issues therein in a court with jurisdiction over such matters.
Any objections to this Report and Recommendation must be filed
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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).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
October 28, 2022
cc: 	Toby J. Henderson, pro se
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