Colassi v. Looper et al CV-98-115-JL 05/20/08 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Kenneth William Colassi

v. Civil No. 08-cv-115-JL Opinion No. 2 008 DNH 106 Oksana Looper, Daniel Looper, and Hillsborough County Superior Court, Southern Division

O R D E R

Plaintiff Kenneth William Colassi, proceeding pro se and

seeking leave to proceed in forma pauperis, has sued his former

wife, Oksana Looper; her present husband, Daniel Looper; and the

Southern Division of Hillsborough County Superior Court.

Colassi alleges violations of his federal constitutional right to

due process and other wrongs arising principally out of the

Superior Court's preliminary refusal to modify its parenting

order to prevent the hoopers from moving from New Hampshire to

Oklahoma with leva Colassi, the minor daughter of Colassi and

Oksana Looper. Colassi has moved for emergency injunctive relief

against leva's relocation.

I. Procedural Background

While this case was awaiting preliminary review by the

magistrate by virtue of Colassi's request to proceed in forma pauperis, see L.R. 4.3(d)(1)(A), the Superior Court filed a

motion to dismiss on a number of grounds.1 The Superior Court

argues, among other things, that the Rooker-Feldman doctrine, see

Rooker v. Fidelity Trust Co.,

(1923); D .C . C t . of

Appeals v. Feldman,

(1983), and the domestic

relations exception, see Ankenbrandt v. Richards,

(1992), deprive this court of subject-matter jurisdiction, and

that the Superior Court enjoys absolute judicial immunity from

Colassi's claim for damages.

The Superior Court, acting on Colassi's motion, conducted a

hearing on "only the limited issue as to whether any irreparable

harm would come to the minor child if modifications were not made

immediately" to its existing parenting order giving Oksana Looper

primary residential responsibility over leva. In re Colassi, No.

06-M-200, slip op. at 1 (N.H. Sup. C t . Mar. 13, 2008). Both

Colassi and Oksana Looper appeared at the hearing with counsel.

^he New Hampshire Supreme Court and the New Hampshire Department of Health and Human Services also purport to join in the motion to dismiss, pointing out that they are named in the caption of the complaint but not referenced as defendants anywhere in its body. In the complaint on file with the court, however, the names of those defendants in the caption of the complaint have been stricken through with black ink. They also have not been served, and Colassi does not identify them as defendants in his objection to the motion to dismiss. The court therefore does not consider the state Supreme Court or DHHS to have been named as defendants to this action.

2

The Superior Court made preliminary findings that the move

was for a legitimate purpose and that it would not cause

irreparable harm to leva, see

-A:12

(2007) (governing relocation of a child subject to a parenting

order), "[a]t least until a temporary hearing can be conducted

with the input of a Guardian ad litem." Slip op. at 2. The

Superior Court thus permitted Oksana Looper to retain primary

residential responsibility over leva in moving to Oklahoma

(except during her summer vacation from school, when that right

would belong to Colassi upon leva's return to New Hampshire), but

appointed a guardian ad litem to provide a preliminary opinion on

leva's best interests by July 1, 2008, and scheduled the case for

a final pre-trial conference thereafter.

.

Approximately two weeks later, Colassi commenced this action

pursuant to this court's federal question jurisdiction,

, alleging that the Superior Court had violated his federal

constitutional rights by authorizing leva's relocation to

Oklahoma. The complaint also references other wrongs by the

state judicial system and Oksana Looper during her divorce

proceedings against Colassi, including the formulation and

execution of the original parenting order, as well as by the

hoopers in allegedly interfering with his visitation with leava

and subjecting her to abuse. Among other relief, Colassi seeks

3 to have this court overturn a number of the orders entered by the

Superior Court during those proceedings, including its most

recent order declining to modify the parenting arrangement, as

well as the divorce decree itself.

II. Analysis

This court lacks subject-matter jurisdiction over these

claims, though not entirely for the reasons identified by the

Superior Court in its motion to dismiss.2 Because a federal

court has a duty to inquire into its subject-matter jurisdiction

independent of any arguments presented by the parties, see, e.g.,

Fafel v. DiPaola,

(1st Cir. 2005), the court

relies on an additional jurisdictional defect, beyond those

identified by the Superior Court, in dismissing this action.

Under the doctrine announced in Younger v. Harris,

(1971), federal courts generally abstain from intervening in

state judicial processes, including child custody proceedings.

Moore v. Sims,

(1979); Malachowski v. City

2While, at first blush, the domestic relations exception might seem to apply, the majority view is that the exception divests federal courts of jurisdiction over cases premised on diversity of citizenship only, in line with the reasoning of Ankenbrandt. See Mandel v. Town of Orleans,

, 271 & n.3 (1st Cir. 2003) (citing cases but declining to resolve the issue). This a federal question case.

4 of Keene,

(1st Cir. 1986). "Abstention is

appropriate when the requested relief would interfere (1) with an

ongoing state judicial proceeding; (2) that implicates an

important state interest; and (3) that provides an adequate

opportunity for the federal plaintiff to advance his federal

constitutional challenge." Rossi v. Gemma,

(1st Cir. 2007 ) .

The Superior Court custody proceedings in which Colassi asks

this court to intervene readily satisfy these criteria. Those

proceedings (1) are ongoing, as evidenced by the fact that the

order authorizing leva's relocation was only preliminary and

called for the appointment of a guardian ad litem to assist the

Superior Court in further deciding the issue,3 (2) implicate

important state interests, see Moore,

;

Malachowksi,

, and (3) provide Colassi the chance

to raise any federal constitutional objections to the Superior

Court's actions, see Malachowski,

.

There is also no question that much of the relief Colassi

seeks from this court, e.g., overturning or modifying the

Superior Court's orders, or enjoining leva's relocation despite

3Indeed, as demonstrated by the procedural posture of the Superior Court's decision. New Hampshire law allows a parent to move for modification of a parenting order.

61-A:11 (2007 & 2008 supp.).

5 its approval by that court, would "interfere" with the

proceedings there. See Rio Grande Cmtv. Health Ctr., Inc. v.

Rullan,

(1st Cir. 2005) (holding that, for

Younger abstention, "interference" includes a federal "proceeding

that either enjoins the state proceeding or has the 'practical

effect' of doing so"). Finally, there is "nothing to suggest

that this case falls within any of the exceptions [to federal

abstention] recognized by Younger, exceptions which have been

narrowly construed." Malachowski,

(ruling that

New Hampshire child custody procedures are not "flagrantly

unconstitutional," and parents' temporary loss of custody was not

"the sort of serious, imminent, and irreparable harm" to justify

federal intervention). Indeed, this court previously made all

the same rulings in deciding to abstain from another action

Colassi filed to challenge other aspects of the state-court

custody proceedings. Colassi v. Hillsborough County Super. C t .,

No. 05-cv-187-SM, slip op. at 4-7 (D.N.H. July 15, 2005), rept. &

rec. adopted, slip op. (D.N.H. July 28, 2005).

While Colassi requests other relief that does not warrant

dismissal of those claims as an exercise of Younger abstention,

there are other barriers to them that require their dismissal

nonetheless. Colassi seeks damages from the Superior Court on

account of its rulings--a remedy which would also "interfere"

6 with the state proceedings within the contemplation of Younger,

but is not subject to dismissal as such because it is legal,

rather than equitable, in nature. See Rossi,

-38

(citing Quackenbush v. Allstate Ins. Co.,

(1996)). But damages against a court or its judges for the

decisions they make are barred by absolute judicial immunity.

See Mireles v. Waco,

(1991). The court therefore

grants the Superior Court's motion to dismiss the damages claim.

Colassi further asks this court to "annul" his divorce from

Oskana Looper. That claim is barred by the Rooker-Feldman

doctrine, under which the federal district courts lack

jurisdiction over "cases brought by state-court losers

complaining of injuries caused by state-court judgments rendered

before the district court proceedings commenced and inviting

district court review and rejection of those judgments." Exxon

Mobil Corp. v. Saudi Basic Indus.,

(2005). A

number of courts have held that the doctrine, as refined by

Exxon-Mobil, bars federal court review of final state divorce

decrees. See, e.g., Jackson v. Davidson, Nos. 07-1389 et al.,

, at *1 (10th Cir. Apr. 7, 2008) (unpublished

disposition); Davis v. United States,

(6th Cir.

2007); Kwasnik v. Leblon,

(3d Cir.)

(unpublished disposition), cert, denied, 128 S. C t . 451 (2007).

7 The Superior Court's motion to dismiss on the basis of Rooker-

Feldman is granted insofar as it seeks dismissal of Colassi's

challenge to the divorce decree.4

Colassi also alleges fraud, extortion, abuse to leva, and

other similar wrongs against the hoopers. Under the appropriate

liberal reading of the pro se complaint, see Estelle v. Gamble,

(1976), the court cannot discern any cause of

action against the hoopers under federal law, and Colassi

specifically invokes supplemental jurisdiction,

,

as to his claims against them. Because the court is dismissing

all of Colassi's federal claims, however, it declines to exercise

supplemental jurisdiction over any state-law claims. See

(c)(3); Marrero-Gutierrez v. Molina,

(1st Cir. 2007). The court notes in that regard that it lacks

diversity jurisdiction over those claims: while the hoopers now

reside in Oklahoma, they were still living in New Hampshire when

this action was filed, which is the relevant time period for

4The Superior Court's motion to dismiss erroneously invokes Rooker-Feldman as divesting this court of jurisdiction over all of Colassi's claims, including his challenge to the parenting orders. As the Superior Court appears to acknowledge, however, state proceedings must have "ended" for the Rooker-Feldman doctrine to apply. Federacion de Maestros de P.R. v. Junta de Relaciones del Trabaio de P.R.,

(1st Cir. 2005) . As just discussed, that cannot be said of the ongoing child custody proceedings at issue here, and the Superior Court does not argue to the contrary. determining domicile. See, e.g., Valentin v. Hosp. Bella Vista,

254 F .3d 358, 361 (1st Cir. 2001).

Ill. Conclusion

For the foregoing reasons, the court GRANTS the Superior

Court's motion to dismiss (document no. 8) insofar as it asserts

lack of subject-matter jurisdiction as to Colassi's claim

challenging the divorce decree and judicial immunity from his

claim for damages. The court decides to abstain from hearing the

balance of Colassi's claims against the Superior Court under

Younger v. Harris. The court declines to exercise supplemental

jurisdiction over Colassi's claims against the hoopers. All

claims except that seeking damages from the Superior Court are

dismissed without prejudice. Colassi's motion for emergency

injunctive relief (document no. 2) is TERMINATED. The clerk

shall enter judgment accordingly and close the case.

SO ORDERED.

Dated: May 20, 2008

cc: Kenneth William Colassi, pro se Nancy J. Smith, Esq. Oksana Looper, pro se Daniel Looper, pro se

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