Baldi v . Broderick, et a l . CV-04-466-PB 09/21/05

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John A . Baldi

v. Case N o . 04-CV-466-PB Opinion No.

John T . Broderick, Jr., et a l .

MEMORANDUM AND ORDER

This case represents John Baldi’s latest stop on what has

become a lengthy journey through the state and federal judicial

systems. He has sued 26 individuals based on their alleged

involvement in three incidents: an alleged assault in 1999, a

road improvement project in 2000, and a libel action filed in

2003.

Defendants have moved to dismiss Baldi’s claims on a variety

of grounds. Because most of Baldi’s claims are barred by res

judicata and the few that remain either fail to state a claim for

relief or are not actionable in federal court under the Rooker-

Feldman doctrine,1 I grant defendants’ motions.

1 See District of Columbia Court of Appeals v . Feldman,

6 2 , 476 (1983); Rooker v . Fidelity Trust Co.,

(1923). A. The Complaint2

1. The Assault

Baldi claims that “[o]n July 8 , 1999 shortly after 11:00 PM

a truck driven by Paul Pearson, the brother of a Fish & Game

employee, exited a gravel road in the town of Epsom at a high

rate of speed and drove 300 yards across a hay field owned by the

Baldi family in an attempt to either kill or seriously injure the

plaintiff, John A . Baldi, by striking him with the truck.”

Compl. ¶ 3 8 . James MacKenzie, an employee of the New Hampshire

Fish & Game Department, “planted the seed for Pearson’s actions.”

Id. ¶¶ 39-40. The Epsom Police rebuffed Baldi’s effort to have

Pearson prosecuted because he was the brother of a Fish & Game

official. Id. ¶ 3 9 . After Baldi persisted, Epsom police

officers Roger Amadon and Frank Cassidy “executed knowingly false

affidavits” and caused Baldi to be arrested for making a false

report to a law enforcement officer, hunting from a motor

2 I construe the Amended Complaint (document n o . 9 ) in the light most favorable to Baldi.

-2- vehicle, and illegally placing an animal carcass near a roadway.3

Id. § 4 1 .

Baldi was tried on all three charges in Concord District

Court. The false report charge was dismissed during trial. Id.

Baldi was found not guilty of hunting from a motor vehicle but

was convicted of placing an animal carcass near a roadway. Id.

¶ 4 3 . The Concord District Court had a policy of allowing its

judges to see and consider notes prepared by bail commissioners

when deciding on a defendant’s guilt or innocence. Id. ¶ 4 4 .

The trial judge in Baldi’s case took advantage of this policy and

improperly considered the bail commissioner’s notes. Id. The

judge also improperly instructed the clerk to enter guilty

verdicts on all three charges in the midst of trial. Id. ¶ 4 5 .

The New Hampshire Supreme Court summarily affirmed Baldi’s

conviction. Id. ¶ 4 3 . The conviction was annulled, however, in

November 2004. Id. ¶ 141.

3 The false report charge was based on Baldi’s complaint about Pearson. The hunting from a motor vehicle charge and the charge of illegally placing an animal carcass near a roadway were based on allegations that Baldi had shot a deer from his trunk and later hung it from a tree near a road.

-3- The New Hampshire Attorney General’s office has had a long-

standing policy of refusing to allow criminal complaints to be

prosecuted against state officials, employees, and family

members. Id. ¶ 3 1 . New Hampshire Attorney General Kelly

Ayotte, Attorney General’s office investigator Michael Bahan, and

Former Governor Craig Benson have relied on this policy in

refusing to investigate various individuals who committed crimes

against Baldi. Id. ¶ 5 9 .

Baldi has sued Fish & Game employee James MacKenzie, former

Epsom police officers Henry Farrin and Frank Cassidy, former

Epsom Police Chief Roger Amadon, former Epsom Selectman John

Hickey, Epsom Police Officer Eric Bourn, Concord District Court

Judge Michael Sullivan, retired District Court Judge Arthur

Robbins, former Concord District Court Clerk Barbara Sweet, all

five members of the New Hampshire Supreme Court, Attorney General

Kelly Ayotte, Attorney General’s Office Investigator Michael

Bahan, and former Governor Craig Benson in connection with this

incident.

2. Road Improvement Project

Unidentified Epsom police officers and other “accomplices”

removed soil from Baldi’s property without permission during a

-4- road improvement project and used it to fill a wetlands area in

the town cemetery in August and September 2000. Id. ¶ 4 6 . These

individuals severely damaged 200 year-old maple trees on Baldi’s

property while removing the soil. Id. Baldi unsuccessfully

litigated claims arising from these actions in Merrimack County

Superior Court. Id. ¶ 4 7 . Superior Court Judge Edward

Fitzgerald was the presiding officer. Id. ¶ 4 8 . The Supreme

Court summarily affirmed Judge Fitzgerald’s rulings. Id. ¶ 5 0 .

Baldi has sued Judge Fitzgerald and all five members of the

New Hampshire Supreme Court in connection with this incident.

3. The Libel Action

Baldi wrote a letter to the New Hampshire Department of

Environmental Services complaining that Ronald Brown had used

soil obtained from the road improvement project to illegally fill

a wetlands area in the town cemetery. Id. ¶¶ 51-53. Citing this

letter, Brown sued Baldi for libel in Merrimack County Superior

Court in June 2003. Id. ¶ 5 3 . Brown was represented in the

libel action by Attorney Charles Russell. Id. ¶ 6 0 . Superior

Court Judge Kathleen McGuire ordered an attachment of Baldi’s

property and the attachment was perfected by Merrimack County

deputy sheriffs Alan Demichelis and Henry Thormley. Judge

-5- McGuire later entered a default judgment against Baldi for

failing to appear at a scheduled conference despite the fact that

Baldi had never received notice of the conference date. Id. ¶¶

55-57. Brown supplied a false affidavit in a related civil case

and his wife, Gail Brown, witnessed the affidavit knowing that it

was false. Id. ¶ 5 8 . Susan Bridge notarized an unspecified

document that was not signed in her presence. Id. Baldi has

sued Ronald and Gail Brown, Bridge, Attorney Russell, Judge

McGuire, and Deputy Sheriffs Demichelis and Thormley in

connection with this incident.

B. Prior Litigation

1. Litigation Concerning the Assault

a. Baldi v . Bourn

Baldi first sued Bourn, Pearson, and MacKenzie in an action

filed in this court in October 2001. See Baldi v . Bourn, N o . 01-

CV-396-JD. Baldi sought damages from all three defendants on a

variety of legal theories. All of Baldi’s claims in that action

arose from Pearson’s alleged assault, defendants’ refusal to

prosecute Pearson, and defendants’ decision to prosecute Baldi

instead. The court ultimately rejected Baldi’s federal claims

-6- and declined to exercise supplemental jurisdiction over his state

law claims. See Baldi v . Bourn, N o . 01-CV-396-JD, Orders dated

May 1 6 , 2002 and October 3 0 , 2002. Baldi did not appeal.

b. Baldi v . Stout

Baldi sued Bail Commissioner Stout in Merrimack County

Superior Court on July 3 , 2000. See Baldi v . Stout, Merrimack

County Super. C t . N o . 00-c-345. He asserted several claims

against Stout based on a letter that Stout allegedly had sent in

his capacity as a bail commissioner to the Concord District

Court. Judge McGuire ultimately rejected Baldi’s claims because

she concluded that Stout was immune from suit. See Baldi v .

Stout, Merrimack County Super. C t . N o . 00-C-345, Order dated

February 8 , 2001.

c. Baldi v . Amadon

Baldi filed a second federal action in July 2002 addressing

the same issues he litigated in Baldi v . Bourn. This time, he

sued Amadon, Farrin, Cassidy, Bourn, MacKenzie, Pearson, Stout,

and Sweet. He also sued one of Attorney General Ayotte’s

predecessors and several of his assistants because he claimed

that the Attorney General’s office was culpable in the conspiracy

-7- not to prosecute Pearson. See Baldi v . Amadon, N o . 02-CV-313-SM

(“Amadon”). Baldi continued to fault Bourn, Pearson and Cassidy

for Pearson’s alleged assault. He also blamed Amadon, Cassidy

and others for failing to prosecute Pearson and for wrongly

charging Baldi instead. He complained that he had been wrongly

convicted in Concord District Court and he claimed that Stout had

improperly placed notes in the court file for the judge in his

case to see. The court rejected Baldi’s federal claims on the

merits and declined to exercise supplemental jurisdiction over

his state law claims. See Baldi v . Amadon, N o . 02-CV-313-M,

Orders date June 9, 2003, April 5 , 2004, and May 1 3 , 2004. These

rulings were sustained on appeal.

d. Baldi v . MacKenzie

Baldi brought yet another federal claim against MacKenzie in

Baldi v . MacKenzie, N o . 04-CV-158-SM. This action, a state law

claim for negligence, was dismissed because the court concluded

that the claim was in reality a claim against the state, which

the court lacked jurisdiction to consider. See Baldi v .

MacKenzie, N o . 04-CV-158-SM, Order dated July 2 6 , 2004. Baldi

did not appeal.

-8- 2. Litigation Concerning the Road Improvement Project

a. Farrin I

Baldi and his mother, Elsie Baldi, filed their first

complaint challenging the road improvement project in March 2001.

See Complaint, Baldi v . Farrin, N o . 01-CV-98-JD (“Farrin I ” ) .

They sued Farrin, several Epsom selectmen, and the Town of Epsom,

claiming that the soil removal was an unconstitutional taking

without compensation and a violation of their due process and

equal protection rights. They also asserted various state law

claims. The court dismissed the federal claims because Baldi had

not exhausted his state remedies. Baldi v . Farrin, N o . 01-CV-98-

J D , Orders dated September 2 4 , 2001 and March 1 8 , 2002. The

court also declined to exercise jurisdiction over Baldi’s state

law claims. See id. These rulings were affirmed on appeal.

b. Farrin II

Baldi and his mother filed a complaint in state court

challenging the road improvement project in October 2001. See

Baldi v . Farrin, Merrimack County Super. C t . N o . 01-C-491

(“Farrin I I ” ) . In addition to the defendants named in Farrin I ,

the Baldis sued Brown and other individuals who allegedly had

-9- participated in the soil removal. Judge Fitzgerald rejected all

of plaintiffs’ claims. See Baldi v . Farrin, Merrimack County

Super. C t . N o . 01-C-491, Orders dated January 2 8 , 2002, May 1 7 ,

2002, and September 2 7 , 2002. These rulings were summarily

affirmed by the New Hampshire Supreme Court.

c. Farrin III

Baldi and his mother filed another federal court complaint

addressing the soil removal issue after they lost in Farrin I I .

See Baldi v . Farrin, N o . 03-CV-96-PB (“Farrin III”). In addition

to the defendants named in Farrin I I , the Baldis sued Judge

Fitzgerald and several lawyers and law firms who had represented

defendants in Farrin I and I I . See id. The court determined

that it lacked subject matter jurisdiction to consider the

Baldis’ claims. Baldi v . Farrin, N o . 03-CV-96-PB, Orders dated

May 2 3 , 2003, June 2 3 , 2003 and August 2 0 , 2003. These rulings

were affirmed on appeal.

d. Farrin IV

Baldi’s wife, Catherine Baldi, filed yet another action

challenging the soil removal. See Baldi v . Farrin, N o . 03-CV-

342-PB. The court ruled that it lacked subject matter

-10- jurisdiction to consider Catherine Baldi’s claims. See Baldi v .

Farrin, N o . 03-CV-342-PB, Order dated July 2 7 , 2004. Baldi did

not appeal.

3. Litigation Concerning the Libel Action

a. Brown v . Baldi

Brown sued Baldi for libel and to recover attorney’s fees in

Merrimack County Superior Court. See Brown v . Baldi, Merrimack

County Super. C t . N o . 03-C-372. Baldi attempted to remove the

case to federal court but the court determined that it lacked

jurisdiction to consider Brown’s claims. See Brown v . Baldi, N o .

03-CV-319-JD, Order dated January 1 5 , 2004. Brown obtained a

$10,000 attachment in state court and Judge McGuire entered

orders holding Baldi in default and awarding Brown $1,000 in

damages on the libel claim. See Brown v . Baldi, Merrimack County

Super. C t . N o . 03-C-372, Orders dated June 3 0 , 2003 and December

3 0 , 2004. On July 1 2 , 2005, docket markings were filed stating

that “the Defendant John A . Baldi has paid the judgment in full

including all costs, fees and other amounts awarded by the

Court.”

-11- b. Baldi v . Brown

Baldi sued Ronald and Gail Brown, Charles Russell, Gregory

Bowen, and the Town of Epsom in a complaint arising from the

filing of the libel claim. See Baldi v . Brown, N o . 04-CV-206-SM.

Baldi based his claims on defendants’ alleged involvement in

obtaining the $10,000 attachment and in prosecuting the libel

action. The court rejected all of Baldi’s claims on the merits.

See Baldi v . Brown, N o . 04-CV-206-SM, Order dated November 3 0 ,

2004. This ruling was affirmed on appeal.

II. ANALYSIS

A. Claims Barred by Res Judicata

Res judicata bars “the parties or their privies from

relitigating claims that were raised or could have been raised in

[a previous] action.”4 Breneman v . United States,

3 ,

4 The res judicata effect of a state court judgment is determined using state law, see Cruz v . Melecio,

4 , 18 (1st Cir. 2000), whereas federal law governs the res judicata effect of a federal court judgment, see Colonial Mortgage Bankers Corp. v . Lopez-Stubbe,

2 , 16 (1st Cir. 2003). New Hampshire’s law of res judicata does not differ materially from federal law. Accordingly, I cite state and federal precedents interchangeably.

-12- 38 (1st Cir. 2004) (quotation omitted); see also Grossman v .

Murray,

(1996) (“Res judicata is a broader

remedy [than collateral estoppel] and bars the relitigation of

any issue that was, or might have been, raised in respect to the

subject matter of the prior litigation.” (emphasis omitted)).

The elements of a res judicata defense are: “(1) a final judgment

on the merits in an earlier proceeding, (2) sufficient

identicality between the causes of action asserted in the earlier

and later suits, and (3) sufficient identicality between the

parties in the two actions.” Breneman, 381 F.3d at 3 8 , quoting

In re Colonial Mortgage Bankers Corp.,

2 , 16 (1st Cir.

2003)); see also Osman v . Gagnon,

(N.H. 2005)

(same). In general, causes of action are identical for res

judicata purposes when they arise from the same factual

transaction. Havercombe v . Dep’t of Educ.

, 4-5 (1st

Cir. 2001) (federal l a w ) ; Patterson v . Patterson,

(1st Cir. 2002) (New Hampshire l a w ) .

Baldi sued Amadon, Farrin, Cassidy, Bourn, MacKenzie and

Sweet in Amadon for failing to prosecute Pearson, prosecuting

Baldi, and improperly influencing his prosecution in Concord

District Court. A final judgment was entered against Baldi in

-13- that action and the judgment was sustained on appeal. All of

Baldi’s current claims against the Amadon defendants concern the

same transactions that spawned the prior litigation.

Accordingly, his current claims against these defendants are

barred by res judicata.

B. Claims Not Barred by Res Judicata5

1. Hickey

Baldi’s sole claim against Hickey is that “Hickey had full

knowledge of the fact that the plaintiff was lawfully shooting

the deer and that there were no grounds for the Epsom police to

stop him. He also knew that Amadon was not a truthful person and

that he lied to get the warrant for M r . Baldi’s arrest on the

charge of ‘Offensive Matter.’” Compl. ¶¶ 151-52. These

allegations fail to support a claim against Hickey on any viable

legal theory. Accordingly, Baldi’s claims against Hickey are

dismissed for failure to state a claim. See Fed. R. Civ. P.

12(b)(6).

5 Baldi also sued Bridge and Donald Goodnow, Director of the Administrative Office of the Courts, as defendants. Baldi has abandoned his claims against Goodnow and he failed to serve Bridge. Accordingly, these claims are dismissed as well.

-14- 2. Ayotte, Bahan and Benson

Baldi alleges that Ayotte, Bahan and Benson are liable

because “[w]ith the consent o f , and policy o f , Defendant Benson,

defendants Bahan . . . and Ayotte will not allow the Attorney

Generals [sic] Office to prosecute[] those individuals who

committed crimes against M r . Baldi because state officials and

employees are involved.” Compl. ¶ 5 9 . Later in the complaint,

Baldi asserts that

[d]efendants Ayottee [sic], Bahan and Benson violated the plaintiff’s 5th & 14th Amendment right to procedural due process when they failed to prosecute state employees, officials, and their family members who committed perjury in both civil and criminal cases in the federal and state courts located in New Hampshire. In addition, they violated the plaintiff’s 14th Amendment right to equal protection of law when they allowed a class based group (public employees and officials) to be exempt from criminal prosecution, when they criminally aggrieved another class of citizens (people who challenge the illegal actions of public officials and employees).

Id. ¶ 116. These allegations fail to state viable claims for

relief. Accordingly, Baldi’s claims against these defendants are

dismissed. See Fed. R. Civ. P. 12(b)(6).

3. Judicial Officer Defendants

Baldi seeks damages, injunctive relief and orders directing

-15- the United States Attorney to prosecute Judge Sullivan, former

Judge Robbins, Judge Fitzgerald, Judge McGuire, and all five

members of the New Hampshire Supreme Court. None of these claims

are viable.

Baldi’s damage claims plainly are barred by the doctrine of

absolute judicial immunity. See, e.g., Stump v . Sparkman,

(1978); Evans v . Foster,

7 4 , 377 (1819).

Baldi also cannot maintain a claim for prospective injunctive

relief because he has not alleged facts that would support an

assertion that he faces an imminent threat of future injury at

the hands of the judicial officer defendants. See, e.g., City of

Los Angeles v . Lyons,

5 , 102 (1983). The court lacks

the power to order the United States attorney to prosecute

anyone. Finally, the court lacks subject matter jurisdiction

under the Rooker-Feldman doctrine to the extent that Baldi seeks

declaratory relief challenging rulings made by the judicial

officer. See Exxon Mobil Corp. v . Saudi Basic Indust. Corp., 125

S . C t . 1517, 1526 (2005)(Rooker-Feldman doctrine applies where

“the losing party in state court filed suit in federal court

after the state proceedings ended, complaining of an injury

caused by the state-court judgment and seeking review and

-16- rejection of that judgment.”).

4. Demichelis and Thormley

Baldi seeks to hold Demichelis and Thormley liable simply

because they carried out Judge McGuire’s allegedly unlawful order

to attach his property. Baldi’s claims against these defendants

fail for the same reason that his claims against the judicial

officer defendants fail. See Gould v . Director, New Hampshire

Div. of Motor Vehicles,

(1994).

III. CONCLUSION

All of Baldi’s claims are dismissed for the reasons

described in this Memorandum and Order. Defendants’ motions to

dismiss (document nos. 2 2 , 2 4 , 2 5 , 4 4 , 49 and 50) are granted. I

decline to exercise supplemental jurisdiction over Ronald and

Gail Brown’s counterclaims (document nos. 58 and 6 0 ) .

Accordingly, those claims are dismissed without prejudice. All

motions not granted by this order are denied. On or before

October 1 5 , 2005, Baldi shall file a memorandum showing cause as

to why he should not be permanently enjoined from filing further

complaints based on the transactions that form the basis for the

-17- current action. No party shall file any further pleadings in

this case without prior court approval.

SO ORDERED.

Paul Barbadoro United States District Judge

September 2 1 , 2005

cc: John A . Baldi, pro se Daniel J. Mullen, Esq. Brian J.S. Cullen, Esq. Charles Russell, Esq. John A . Curran, Esq.

-18-