Albrecht v. Sternenberg et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Dana Albrecht
v. Civil No. 23-cv-381-JL-TSM
Kathleen Sternenberg, et al.
REPORT AND RECOMMENDATION
Plaintiff Dana Albrecht, pro se, brought this civil rights suit under 42 U.S.C. § 1983
asserting claims against several defendants. Defendant Kathleen Sternenberg moves to dismiss
(doc. no. 5), arguing that she is entitled to judicial immunity as to all of Albrecht’s claims against
her.1 Albrecht objects. For the following reasons, the court recommends that the district judge
grant Sternenberg’s motion to dismiss.
Standard of Review
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges whether a
complaint contains enough “factual matter” to show that the plaintiff has a plausible entitlement
to relief under the prevailing law. See Burt v. Bd. of Tr. of Univ. of R.I., 84 F.4th 42, 50 (1st Cir.
2023). In evaluating whether the plaintiff has a plausible entitlement to relief, the court must
accept the complaint’s factual allegations as true, and it must draw all reasonable inferences in the
plaintiff’s favor. Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Generally, the court
may consider only the facts alleged in the complaint, exhibits attached to the complaint, and other
materials that are fairly incorporated in the complaint or are subject to judicial notice such as
matters of public record. Lowe v. Mills, 68 F.4th 706, 713-14 (1st Cir. 2023); see Butler v. Balolia,
1 The other defendants – Bruce DalPra, Julie Introcaso, Mark Derby, David King, and the
“NH Judicial Branch” – have also filed motions to dismiss but they are presently unripe.
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736 F.3d 609, 611 (1st Cir. 2013). Finally, as a pro se litigant, Albrecht is entitled to a liberal
construction of his pleadings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Facts
Applying that standard, the relevant facts are as follows. This suit arises out of a separate
proceeding in the New Hampshire Circuit Court, 9th Circuit, Family Division (the “family court”).
The family court proceeding began after Albrecht’s then-spouse, Katherine Albrecht, “obtained a
civil domestic violence order of protection” against Albrecht. Doc. no. 1 ¶ 27. Although that order
was “later dismissed,” id., the family court proceeding developed into a multi-year divorce, child
custody, and parental rights battle.
At some point prior to or around October 2016, then-Judge Julie Introcaso began presiding
over the family court proceeding. Introcaso appointed a marital master, defendant Bruce DalPra.
In turn, DalPra recommended that Introcaso appoint Sternenberg as guardian ad litem for the
Albrechts’ four children. Introcaso approved that recommendation, appointing Sternenberg as
guardian ad litem on October 13, 2016. At the time and unknown to Albrecht, Sternenberg and
Introcaso were close friends. In particular, Introcaso had named Sternenberg godmother to one of
her children, and they had vacationed together on more than one occasion. There are no allegations
that DalPra had a personal relationship with Sternenberg or Introcaso, but Albrecht alleges that
DalPra learned about Sternenberg and Introcaso’s relationship in 2014, and failed to disclose it to
Albrecht.
After Sternenberg’s appointment, Albrecht’s ex-spouse filed a motion in the family court
proceeding requesting permission to relocate three of their children to California. On August 9,
2017, DalPra held a hearing on the motion at which Sternenberg “provided extensive testimony”
and recommended that the court grant the motion, which it did. See id. ¶¶ 13, 31-33.
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In 2019, Albrecht filed a motion in the family court to hold his ex-spouse in contempt for
failing to comply with the family court’s parenting plan. On May 9, 2019, DalPra held a hearing
on the motion. After the hearing, DalPra recommended that Albrecht’s motion be denied, see id.
¶¶ 39-42. Introcaso ultimately approved that recommendation. See id. ¶ 41. Albrecht appealed
the denial of his motion for contempt to the New Hampshire Supreme Court, which denied review.
In 2020, Sternenberg and Introcaso’s friendship became public, and the New Hampshire
Judicial Conduct Committee began investigating Sternenberg’s guardian ad litem appointments in
Introcaso’s cases. Introcaso ultimately admitted to serious judicial ethics violations and resigned
her judgeship. In re Julie Introcaso, Nos. JC-19-050-C & JC-20-010-C (N.H. Judicial Conduct
Comm. Feb. 19, 2021). Moreover, Introcaso was accused of tampering with court documents, a
charge for which she was later convicted after an Alford plea. See Todd Bookman, A former N.H.
judge pleads guilty to tampering with case files; given a suspended sentence, N.H. Public Radio,
Nov. 15, 2021, https://www.nhpr.org/nh-news/2021-11-15/julie-introcaso-wite-out-nh-circut-
court (last visited Nov. 8, 2023).
In this suit, Albrecht brings constitutional claims against Sternenberg, Introcaso, DalPra,
two other New Hampshire state judges (Mark Derby and David King), and the “NH Judicial
Branch.” Albrecht brings seven claims against Sternenberg. In six of the seven claims, Albrecht
alleges that Sternenberg violated his rights to procedural and substantive due process under the
Fourteenth Amendment by failing to disclose her conflict of interest when Introcaso initially
appointed her in October 2016 (Counts 1 and 2); when she testified at the August 9, 2017 hearing
(Counts 7 and 8); and when she testified at the May 9, 2019 hearing (Counts 11 and 12). In
addition, Albrecht brings a claim (Count 40) that Sternenberg violated his First Amendment rights
under the Free Exercise and Establishment Clauses. In relation to that claim, Albrecht alleges that,
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during her testimony at the August 9, 2017 hearing, Sternenberg described the works of Italian
renaissance painter Sandro Botticelli as “naked paintings” and stated that one of Albrecht’s
children said that she had “real problems sleeping” after seeing some of Botticelli’s works during
a trip with Albrecht to the Boston Museum of Fine Arts. Doc. no. 1 ¶ 204.
In his demand for relief, Albrecht seeks “declaratory judgment[s]” against Sternenberg “for
all violations of procedural due process”; “all violations of substantive due process”; and for the
violation of the First Amendment; as well as “all other relief as is just and reasonable.” Doc. no.
1 at 3-4.
Discussion
Sternenberg moves to dismiss Albrecht’s claims against her, arguing that she is entitled to
absolute quasi-judicial immunity because Albrecht’s claims relate to her service as a court-
appointed guardian ad litem. Albrecht objects. Among other arguments, he contends that § 1983
abrogates judicial immunity; that Sternenberg’s appointment as guardian ad litem was ineffective
because Introcaso should have recused herself from presiding over the family court proceeding;
and that declaratory relief is available against state judicial officers under § 1983. The court
recommends that the district court grant Sternenberg’s motion on the basis of quasi-judicial
immunity.
Judicial immunity generally precludes lawsuits brought against judges for acts taken as
part of their judicial functions. See, e.g., Verogna v. Johnstone, 583 F. Supp. 3d 331, 337-38
(D.N.H. 2022), aff’d, No. 22-1364, 2022 WL 19795808 (1st Cir. Nov. 14, 2022), cert. denied, No.
22-7607, 2023 WL 6378181 (Oct. 2, 2023); Dominic v. Goldman, 560 F. Supp. 3d 579, 586
(D.N.H. 2021). Judicial immunity is absolute, and it is broad. See Cok v. Cosentino, 876 F.2d 1,
2 (1st Cir. 1989) (per curiam). That is, judicial immunity “applies no matter how erroneous the
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act may have been, how injurious its consequences, how informal the proceeding, or how
malicious the motive.” Id. (citing Cleavinger v. Saxner, 474 U.S. 193, 199-200 (1985)). “Judicial
immunity applies even when the judge is accused of acting maliciously or corruptly.” Davis v.
Campbell, 2014 WL 234722, at *8 (N.D.N.Y. Jan. 22, 2014) (citing Imbler v. Pachtman, 424 U.S.
409, 419 n.12 (1976)); see also Gibson v. Goldston, No. 22-1757, --- F.4th ---, 2023 WL 7118522,
at *3 (4th Cir. 2023) (citing Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351 (1872)). “Only judicial
actions taken in the clear absence of all jurisdiction will deprive a judge of absolute immunity.”
Cok, 876 F.2d at 2.
Further, judicial immunity extends to “those who perform tasks that are inextricably
intertwined with the judicial function,” a doctrine known as quasi-judicial immunity. Nystedt v.
Nigro, 700 F.3d 25, 30 (1st Cir. 2012). Quasi-judicial immunity “is rooted in the wise idea that
those who perform adjudicative functions ‘require a full exemption from liability.’” Id. (quoting
Butz v. Economou, 438 U.S. 478, 508 (1978)). And, to the extent they are appointed “to aid and
inform the family court,” guardians ad litem “are non-judicial persons fulfilling quasi-judicial
functions” who are sufficiently involved in the adjudicative process to be entitled to quasi-judicial
immunity. See Cok, 876 F.2d at 3.
Sternenberg is entitled to absolute quasi-judicial immunity as to Albrecht’s claims against
her in this case. The family court appointed Sternenberg to serve as a guardian ad litem in the
family court proceeding. Consistent with that appointment, Sternenberg undertook the precise
functions – gathering information, preparing a report, and making a recommendation to the court
– that entitle a guardian ad litem to quasi-judicial immunity. See id. (holding that court-appointed
guardian ad litem was entitled to quasi-judicial immunity where plaintiff’s due process claims
amounted to “negligent performance or dereliction of duty”); Marr v. Me. Dept. of Hum. Servs.,
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215 F. Supp. 2d 261, 268-69 (D. Me. July 9, 2002) (“Judicial immunity has been extended to
protect the [guardian ad litem’s] acts of investigating, meeting with children, making reports and
recommendations to the court, and testifying in court.”); Puiia v. Cross, No. 12-cv-54-PB, 2012
WL 3257824, at *2 (D.N.H. Aug. 8, 2012) (finding that guardian ad litem appointed in New
Hampshire family court to “carry out certain functions related to custody proceedings” was entitled
to absolute quasi-judicial immunity). Albrecht has not alleged that he suffered any harm in relation
to any acts taken by Sternenberg that were either outside her jurisdiction or beyond her quasi-
judicial functions. Compare Gibson, 2023 WL 7118522, at *5 (holding that state judge who
searched a litigant’s home was not entitled to judicial immunity for claims based on that act
because searching a litigant’s home is an executive rather than judicial function). Accordingly,
Sternenberg is entitled to absolute quasi-judicial immunity.
None of Albrecht’s arguments persuade the court otherwise. As an initial matter, Albrecht
contends that § 1983 abrogates absolute judicial immunity and that qualified immunity, rather than
absolute immunity, should apply in these circumstances. But, as Albrecht acknowledges, the
Supreme Court has long held that judicial immunity (and by extension, quasi-judicial immunity)
applies in actions under § 1983. E.g., Stump v. Sparkman, 435 U.S. 349, 355-56 (1978).2
Albrecht also argues that Sternenberg was never properly appointed in the family court
proceeding, so her actions during the family court proceeding cannot be considered judicial acts.
More specifically, Albrecht asserts that Introcaso’s failure to recuse herself from the family-court
proceeding was itself a due process violation so any acts taken after the time Introcaso should have
recused herself – including Sternenberg’s appointment – are, in effect, void. In support, Albrecht
2 In acknowledging that his argument is foreclosed by binding precedent, Albrecht
contends that the Supreme Court’s decisions on judicial immunity were wrongly decided and that
he wishes to preserve the issue for appeal.
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points to Caperton v. AT Massey Coal Co., Inc., 556 U.S. 868 (2009), and Brown v. Newberger,
291 F.3d 89 (1st Cir. 2002). Neither case, however, supports Albrecht’s arguments.
To start, the First Circuit rejected Albrecht’s reasoning in Brown v. Newberger. In Brown,
the plaintiffs argued that two court-appointed sexual abuse evaluators were not entitled to quasi-
judicial immunity because they were never properly appointed by the court. 291 F.3d at 94. But
the court declined to examine whether any defect existed in the defendants’ appointments, stating
instead that “[t]he essential fact is that both defendants were operating at the request of the court.”
Id. The court reasoned that “[w]ere collateral and retrospective attacks on technical defects of
court appointments permitted, the court’s work in an already difficult litigation field would often
be undone, with consequent uncertainty, delay, and frustration.” Id. The court thus held that both
defendants were entitled to quasi-judicial immunity, notwithstanding the plaintiffs’ attack on the
validity of their appointments. See id. at 94-95. Similarly, here, even if Introcaso should not have
appointed Sternenberg for one reason or another, the “essential fact” remains that Sternenberg
acted at the state court’s request. Albrecht’s after-the-fact, collateral challenges to Sternenberg’s
appointment cannot undermine her entitlement to quasi-judicial immunity. See id.
The Supreme Court’s decision in Caperton also does not help Albrecht. In Caperton, the
Supreme Court reversed, on federal due process grounds, a West Virginia Supreme Court justice’s
refusal to recuse himself from a case where he had received large campaign contributions from a
litigant. 556 U.S. at 884-87. Because the justice should have recused himself, the Supreme Court
vacated the West Virginia Supreme Court’s decision on its merits and remanded the matter for
rehearing. See id. at 872, 889-90. Importantly, however, the Supreme Court’s decision in
Caperton came on direct appeal from the matter in which the petitioner’s motion to recuse had
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been denied, not, as here, in a collateral civil rights lawsuit where the judicial officers themselves
are named as defendants.3
Next, Albrecht asserts that judicial immunity does not apply because he seeks declaratory
relief in this case rather than money damages. It is true that declaratory relief may be available
against a state judicial officer notwithstanding judicial immunity. See Justice Network Inc. v.
Craighead Cnty., 931 F.3d 753, 763 (8th Cir. 2019) (“Currently, most courts hold that the
amendment to § 1983” that generally bars injunctive relief “does not bar declaratory relief against
judges.”); Allen v. DeBello, 861 F.3d 433, 442 (3d Cir. 2017) (discussing circumstances when
declaratory relief may be available against judges in § 1983 suits).4 But “[a] declaratory judgment
is meant to define the legal rights and obligations of the parties in anticipation of some future
conduct, not simply to proclaim liability for a past act.” Justice Network Inc., 931 F.3d at 764
(quoting Lawrence v. Kuenhold, 271 Fed. Appx. 763, 766 (10th Cir. 2008)). Therefore, a
statement that a state judge’s prior actions violated federal law does not “satisfy the definition of
‘declaratory judgment.’” See id.; Lawrence, 271 Fed. Appx. at 766 (“What [plaintiffs] are seeking
is a declaration of past liability, not future rights between them and Judge Kuenhold. A declaratory
judgment would serve no purpose here and thus, is not available.”); Davis, 2014 WL 234722, at
3 Albrecht also cites Rippo v. Baker, 580 U.S. 285 (2017), which vacated a Nevada
Supreme Court judgment on the ground that it applied the wrong legal standard to a due process
claim based on a judge’s failure to recuse himself. Like Caperton, Rippo came in the context of a
direct appeal to the Supreme Court from the state court matter as opposed to a separate lawsuit
against the judicial officers themselves. Id.
4 In 1984, the Supreme Court held that judicial immunity does not prohibit suits against
state court judges under § 1983 for prospective injunctive relief. Pulliam v. Allen, 466 U.S. 522,
541-42 (1984). Congress, however, abrogated Pulliam by amending § 1983 to state that injunctive
relief “shall not be granted” in any action “brought against a judicial officer for an act or omission
taken in such officer’s judicial capacity . . . unless a declaratory decree was violated or declaratory
relief was unavailable.” 42 U.S.C. § 1983; see Bolin v. Story, 225 F.3d 1234, 1240 (11th Cir.
2000).
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*9 (finding that request for declaratory judgment that “past actions that occurred in the context of
the Family Court proceedings violated [the plaintiff’s] constitutional rights” was a retrospective
rather than prospective request, even though framed in “future terms”); see also Green v. Mansour,
474 U.S. 64, 73 (1985) (holding that declaratory judgment was unavailable where “[t]here is no
claimed continuing violation of federal law” and no “threat of state officials violating” the
challenged law in the future). Indeed, the First Circuit has indicated that such a declaratory
judgment would typically be an impermissible advisory opinion. ACLU of Mass. v. U.S.
Conference of Catholic Bishops, 705 F.3d 44, 53 (1st Cir. 2013) (“With limited exceptions, not
present here, issuance of a declaratory judgment deeming past conduct illegal is also not
permissible as it would be merely advisory.”).
At most, Albrecht requests declaratory judgments against Sternenberg that would state that
her past actions violated his rights under the First and Fourteenth Amendments.5 That kind of
judgment would merely declare Sternenberg’s “liability for a past act.” See Justice Network, 931
F.3d at 763. So, even though Albrecht characterizes the relief that he seeks as declaratory, what
he seeks does not “satisfy the definition of declaratory judgment” in function. See id. For that
reason, the exception to judicial immunity for certain claims seeking declaratory relief does not
apply.
Lastly, Albrecht argues that the court cannot dismiss the claims against Sternenberg
“without having first formed any opinion about the claims against” Introcaso. Doc. no. 12-1 at 17.
For the reasons already explained, however, Sternenberg is entitled to absolute quasi-judicial
immunity here regardless of how Albrecht’s claims against Introcaso are resolved.
5 Albrecht’s complaint is unclear about the precise declaratory judgment he seeks, as he
only asks the court to “[i]ssue declaratory judgment in favor of Plaintiff for all violations” of the
constitution alleged. Doc. no. 1 at 31-32.
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In his objection, Albrecht also asks for an opportunity to amend his complaint.
Sternenberg’s motion to dismiss, however, gave Albrecht notice of the defects in his complaint,
and Albrecht could have amended the complaint at that time instead of resting on the complaint as
presented. See Fed. R. Civ. P. 15(a)(1)(B); Gonzalez-Gonzalez v. United States, 257 F.3d 31, 36-
37 (1st Cir. 2001) (observing that a motion to dismiss generally provides pro se litigants reasonable
notice of potential dismissal and an opportunity to respond by either objecting or amending the
complaint as of right). Furthermore, Albrecht did not indicate what he would add or change in an
amended pleading that would affect the outcome considering the breadth of absolute quasi-judicial
immunity. Cf. LR 15.1(a) (requiring any party who moves to amend to file a proposed amended
complaint to the motion to amend).
Conclusion
For the foregoing reasons, the district judge should grant Sternenberg’s motion to dismiss
(doc. no. 5). 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 objection period may be extended
upon motion. Only those issues raised in the written objections “‘are subject to review in the
district court,’” and any issues “‘not preserved by such objection are precluded on appeal.’”
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016) (citations omitted).
____________________________
Talesha L. Saint-Marc
United States Magistrate Judge
December 11, 2023
cc: Dana Albrecht, pro se
Counsel of Record
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