Puiia v . Cross et a l . CV-12-54-PB 8/8/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Joseph Puiia, Jr.

v. Case N o . 12-cv-54-PB Opinion N o .

Philip Cross et a l .

MEMORANDUM AND ORDER

Joseph Puiia, J r . brings suit against Marital Master Philip

Cross and Judge Lucinda Sadler of the New Hampshire Superior

Court Family Division, as well as Barbara Salvo-Wallack, who

served as the guardian ad litem in custody proceedings involving

two of Puiia’s grandchildren. Puiia’s suit arises out of the

family court proceedings that led to the suspension of his

previously granted grandparent visitation rights. He seeks

monetary and injunctive relief under

based on

alleged violations of his substantive and procedural due process

rights. He also asserts a conspiracy claim and two state law

claims. Defendants move to dismiss all claims. For the reasons

set forth below, I grant their motions to dismiss Puiia’s

federal claims, and decline to exercise supplemental jurisdiction over his remaining state law claims.

I. BACKGROUND

In September 2008, Puiia was granted status as an

intervenor in custody proceedings involving two of his grand-

children. A family court judge subsequently issued an order

granting him visitation rights.

At an ex parte hearing held before Master Cross in February

2009, Salvo-Wallack, in her function as the guardian ad litem,

recommended that Puiia’s visitation rights be suspended. Puiia

alleges that she made her recommendation without having properly

investigated the matter. Although he was present at the

hearing, Puiia was not given an opportunity to address the

court, provide counter evidence, cross-examine witnesses, or sit

at the litigants’ table. Master Cross adopted Salvo-Wallack’s

recommendation and Judge Sadler approved the order suspending

Puiia’s visitation rights. Since then, Puiia has not been

allowed any contact with his grandchildren.

II. STANDARD OF REVIEW

To survive a motion to dismiss under Rule 12(b)(6),

plaintiff must make factual allegations sufficient to state a

2 claim to relief that is plausible on its face. See Ashcroft v .

Iqbal,

6 2 , 678 (2009). A claim is facially plausible

when it pleads “factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged. The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.”

(citations omitted).

In deciding a motion to dismiss, I must employ a two-

pronged approach. See Ocasio-Hernández v . Fortuño-Burset,

, 12 (1st Cir. 2011). First, I must screen the complaint

for statements that “merely offer legal conclusions couched as

fact or threadbare recitals of the elements of a cause of

action.”

(citations, internal quotation marks, and

alterations omitted). A claim consisting of little more than

“allegations that merely parrot the elements of the cause of

action” may be dismissed.

Second, I must credit as true

all non-conclusory factual allegations and the reasonable

inferences drawn from those allegations, and then determine if

the claim is plausible.

The plausibility requirement

“simply calls for enough fact to raise a reasonable expectation

that discovery will reveal evidence” of illegal conduct. Bell

3 Atl. Corp. v . Twombly,

4 4 , 556 (2007). The “make-or-

break standard” is that those allegations and inferences, taken

as true, “must state a plausible, not a merely conceivable, case

for relief.” Sepúlveda-Villarini v . Dep’t of Educ. of P.R.,

5 , 29 (1st Cir. 2010); see Twombly, 550 U.S. at 555

(“Factual allegations must be enough to raise a right to relief

above the speculative level . . . .” (citation omitted)).

III. ANALYSIS

Puiia asserts Section 1983 claims for alleged violations of

his due process rights, seeking money damages and injunctive

relief. He also alleges that defendants conspired to deprive

him of his constitutional rights. I address each claim in turn.

A. Claims for Money Damages

First, with respect to Puiia’s Section 1983 claims for

damages against Master Cross and Judge Sadler in their official

capacities, I note that “it is well settled ‘that neither a

state agency nor a state official acting in his official

capacity may be sued for damages in a section 1983 action.’”

Wang v . N.H. Bd. of Registration in Med.,

9 8 , 700 (1st

Cir. 1995) (quoting Johnson v . Rodriguez,

0 4 , 108 (1st

Cir. 1991)). Accordingly, I dismiss those claims.

4 Second, all three defendants enjoy absolute immunity from

Section 1983 claims that seek to hold them personally liable.

Judge Sadler is entitled to absolute judicial immunity from

civil liability “for any normal and routine judicial act . . .

no matter how erroneous the act may have been, how injurious its

consequences, how informal the proceeding, or how malicious the

motive.” Cok v . Cosentino,

, 2 (1st Cir. 1989). The

only action attributable to Judge Sadler is her approval of

Master Cross’s order suspending Puiia’s visitation rights.

Approval of such orders is clearly a routine judicial act within

the jurisdiction of a family court judge. Accordingly, the

judge is absolutely immune from liability and I dismiss Puiia’s

damages claims against her.

Similarly, Cross and Salvo-Wallack are entitled to absolute

quasi-judicial immunity because they functioned as agents of the

family court and performed “activities integrally related to the

judicial process.”

at 3 . Cross, acting in his capacity as

a marital master, presided over the challenged custody hearing

and recommended the suspension of Puiia’s visitation rights.

See N.H. Super. C t . Admin. R. 12-9 (marital masters are

authorized to preside over certain family court proceedings and

make recommendations to family court judges). Salvo-Wallack was

5 appointed by the family court to serve as a guardian ad litem

and carry out certain functions related to custody proceedings.

See Cok,

(a guardian ad litem performs quasi-

judicial functions because she “gathers information, prepares a

report and makes a recommendation to the court regarding a

custody disposition.”). In that role, she recommended that

Puiia’s visitation rights be suspended. Because Puiia’s

pleadings fail to show that either Cross or Salvo-Wallack acted

“in clear and complete absence of authority,” they are entitled

to absolute quasi-judicial immunity.

Accordingly, I

dismiss Puiia’s damages claims against them.

B. Claim for Injunctive Relief

Turning to Puiia’s Section 1983 claim for injunctive

relief, he seeks an order requiring the family court to restore

his visitation rights. Section 1983 expressly bars the relief

he is seeking. It provides that “in any action brought against

a judicial officer for an act or omission taken in such

officer’s judicial capacity, injunctive relief shall not be

granted unless a declaratory decree was violated or declaratory

relief was unavailable.”

; see also Adames v .

Fagundo,

0 , 22 (1st Cir. 2006). To avoid the

statutory bar, Puiia argues that a prior family court order

6 granting him visitation rights is a declaratory decree that

defendants violated by issuing a subsequent order suspending

those rights. I am unpersuaded for several reasons.

First, even if the prior order could be a declaratory

decree, child custody and visitation orders are subject to

modification. See Chandler v . Bishop,

0 4 , 411 (1997)

(“In visitation matters, the court has continuing jurisdiction

to modify arrangements in the best interests of the child.”).

It is therefore ludicrous to assert that a family court officer

who has authority to adjudicate visitation matters “violates” a

prior order in the case by modifying it based on new findings.

Second, the order granting Puiia visitation rights clearly is

not a “declaratory decree” within the meaning of Section 1983.

In the context of Section 1983, “a declaratory decree refers to

an order directing a particular judicial officer to take or

refrain from taking a particular action in a particular

dispute.” T.Y.B.E. Learning Ctr. v . Bindbeutel, N o . 4:09-CV-

1463 (CEJ),

, at *3 (E.D. M o . June

1 4 , 2011) (emphasis added); see Tesmer v . Kowalski,

2 2 , 628 (E.D. Mich. 2000), rev’d on other grounds,

(6th Cir. 2003), rev’d on standing grounds,

(2004) (federal court’s declaratory judgment that a state

7 judicial practice was unconstitutional constituted a declaratory

decree within the meaning of Section 1983 because its effect was

to prohibit state court judges from engaging in the

unconstitutional practice). Here, the family court order simply

delineated the rights of private parties. The order in no way

directed other judicial officers to refrain from readjudicating

visitation matters. Accordingly, it is clear that Puiia is not

entitled to injunctive relief.1

C. Conspiracy Claim

To the extent Puiia’s conspiracy claim survives the

aforementioned determinations, he has failed to sufficiently

plead the claim.2 Although “pro se complaints are to be read

1 In his complaint, Puiia makes a passing request for “declaratory judgment” under Section 1983 without specifying what he is asking the court to declare. He does not reference this request in his objection to defendants’ motions to dismiss. In any event, it is clear that Puiia is not seeking declaratory relief in the true legal sense. The gist of his complaint is that defendants acted improperly at a prior hearing and unjustifiably suspended his visitation rights. “Declaratory relief[, however,] is meant to define the legal rights and obligations of the parties in anticipation of some future conduct, not simply to proclaim liability for past actions.” Chavez v . Schwartz,

5 2 , 754 (10th Cir. 2012); see Johnson v . McCuskey,

(7th Cir. 2003) (same). 2 Because Puiia withdrew the conspiracy claim only in response to Salvo-Wallack’s motion to dismiss, see Doc. N o . 23-1 at 1 0 , I assume he continues to assert the claim against the other defendants. 8 generously, allegations of conspiracy must nevertheless be

supported by material facts, not merely conclusory statements.”

Slotnick v . Garfinkle,

(1st Cir. 1980)

(internal citation omitted); see Iqbal,

(conclusory nature of allegations not entitled to presumption of

truth). Puiia alleges in a conclusory fashion that defendants

engaged in “concerted actions” to deprive him of his due process

rights. He alleges no facts that could plausibly suggest that a

conspiracy existed. Accordingly, the claim is not actionable

under either Section 1983 or Section 1985.

D. State Law Claims

Puiia’s remaining claims (intentional and negligent

infliction of emotional distress) arise under state law. I

decline to exercise supplemental jurisdiction over these claims

as I have dismissed all claims over which I have original

jurisdiction. See

(c)(3); Camelio v . Am. Fed’n,

(1st Cir. 1998). Accordingly, I dismiss

Puiia’s state law claims without prejudice.

IV. CONCLUSION

For the aforementioned reasons, I grant defendants’ motions

to dismiss Puiia’s federal claims (Doc. Nos. 14 & 16) and

9 decline to exercise supplemental jurisdiction over his remaining

state law claims.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge August 8 , 2012

cc: Joseph Puiia, Jr., pro se Nancy J. Smith, Esq. Barbara Salvo-Wallack, pro se

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