Goldblatt v. Geiger et al CV-10-537-PB 4/2/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kenn Goldblatt et a l .

v. Case No. 10-cv-537-PB Opinion No.

Nancy J. Geiger et a l .

MEMORANDUM AND ORDER

Kenn Goldblatt and Sima Mazzu, proceeding pro se, bring suit

against an administrative judge, an associate justice, and a

marital master of the Family Division of the New Hampshire court

system (the "Family Court"). The case concerns defendants'

exclusion of Goldblatt as Mazzu's non-attorney representative in

a Family Court case instituted by Mazzu's ex-husband. Mazzu

asserts a claim under Title II of the Americans with Disabilities

Act,

et seg. ("ADA"). Goldblatt asserts claims

under Title V of the ADA and under

for violation

of his due process and egual protection rights. Defendants have

filed a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6). In this Memorandum and Order, I grant

defendants' motion to dismiss. I. BACKGROUND1

The claims arise out of a child custody dispute that began

more than five years ago in the Manchester branch of the Family

Court (the "Manchester Court") and is currently before the Salem

branch of the Family Court (the "Salem Court"). The proceeding

involves Mazzu as respondent, her ex-husband, James, as

petitioner, and a guardian ad litem ("GAL") appointed to

represent Mazzu's daughter's interests.

A. Mazzu's Recruests for Accommodations from the Family Court

Mazzu has Post-Traumatic Stress Disorder ("PTSD") , and her

involvement in court proceedings exacerbates her disability. In

May 2009, Mazzu's attorney, Jannette Mooney, filed a reguest for

ADA accommodations for Mazzu in the Manchester Court, citing PTSD

as a disability gualifying her for the entitlements and benefits

of that law. These reguests included, among others, never being

subjected to examination by the opposing party, telephonic

appearances, and the sealing of all documents related to her

medical condition. The Manchester Court denied the reguested

accommodations as "unreasonable" on June 18, 2009. At that time,

the presiding marital master in the case was Bruce Dalpra, and

the presiding judge was Judge O'Neill. Neither Dalpra nor

1 The background is taken from the complaint (Doc. No. 1) construed under the Rule 12(b)(6) standard.

2 O'Neill are defendants in this action.

In June 2009, Mazzu moved for reconsideration of the

decision denying her request for accommodations. Before O'Neill

ruled on Mazzu's motion for reconsideration, Mazzu and her ex-

husband settled the action.

The following year, the parties became involved in

litigation again.2 Marital Master Nancy Geiger and Judge John

Emery, two of the defendants in this case, presided over the

action. In addition to Mazzu and her ex-husband, the case also

involved a GAL who represented the interest of the parties'

daughter.

In June 2010, Mazzu moved to appear telephonically at an

upcoming conference with the GAL, scheduled for September 1,

2010. In that motion, Mazzu noted that she "will file a more

detailed accommodations request outlining the specific

accommodations sought for future hearings." The court granted

Mazzu's motion the following day and informed Mazzu that the

2 The parties do not explain the procedural posture of the Family Court proceedings. It appears from Mazzu's June 30, 2010, motion to appear telephonically that she and her ex-husband were involved in a "parenting litigation" which they settled in November 2009. However, a "relocation matter" subsequently arose and, in effect, a new litigation began with a different marital master and judge, albeit with the same docket number. The exact procedural posture is not relevant to my decision. I discuss it here only for clarification.

3 court would need "specific information as to exactly what

accommodations were being requested well in advance of any

hearing so that it can be reviewed and the appropriate

arrangements can be made." The hearing scheduled for September

1, 2010, was subsequently rescheduled to October 18, 2010.

On October 8, 2010, Mazzu filed a list of requested

accommodations for the upcoming hearing. The requests included

the ability to appear telephonically and general flexibility with

deadlines. In a scheduling order dated November 2, 2010, the

court noted that it was still considering Mazzu's requests for

accommodations, as well as a subsequent request to keep Mazzu's

records confidential.3 For an upcoming hearing on November 22,

2010, the court granted Mazzu's request to appear telephonically,

and noted that if she attended the hearing in person, there would

be a break and she would not be required to testify. Mazzu

attended the conference via telephone.

Shortly thereafter, Geiger recused herself from Mazzu's case

because of a conflict. Marital Master Jennifer Lemire took over

the case. Lemire subsequently recused herself because of a

conflict with the GAL. Because Geiger and Lemire were the only

3 Neither the complaint nor the parties' briefs discuss the October 18th hearing. I will assume that to the extent it occurred as scheduled, Mazzu was not required to participate without her requested accommodations.

4 two marital masters in the Manchester Court, Emery transferred

the case to the Salem Court on January 12, 2011.

In the Salem Court, Mooney filed a motion requesting that

Mazzu be allowed to appear telephonically for an upcoming status

conference in March 2011. The court granted the motion. The

court subsequently granted Mooney's request for Mazzu to appear

telephonically at another hearing in June 2011. The court

further ordered that Mazzu "will be represented by her attorney

in the courtroom. For so long as she has legal representation her

attorney will speak on her behalf." The court also directed

Mazzu to submit a proposed list of accommodations she wished the

court to order.

On August 12, 2011, Mooney submitted a letter to the clerk

of court requesting various accommodations for Mazzu. On

September 2, 2011, before the court determined whether to grant

Mazzu's accommodations, Mooney withdrew as Mazzu's attorney. On

October 13, 2011, the Salem Court granted all of Mazzu's requests

for accommodations.4 The case is currently pending in the Salem

Court.

4 The court denied one of the requests as moot. Mazzu asked that to the extent the court did not grant her request to appear telephonically, the court permit an advocate to be present at court proceedings. Because the court granted Mazzu's request to appear telephonically, it denied that request as moot.

5 B. Goldblatt's Representation of Mazzu

Sometime in August 2010, while the case was in the

Manchester Court before Geiger and Emery, Mazzu hired Goldblatt,

a non-attorney, as her ADA Advocate. On August 20, 2010,

Goldblatt filed an affidavit in the court, along with a durable

power of attorney executed by Mazzu, and entered an appearance as

Mazzu's non-attorney representative under New Hampshire Family

Division Rule ("FD Rule") 1.18.5 FD Rule 1.18 reguires a non­

lawyer seeking to represent a party in Family Court to file a

power of attorney and an affidavit disclosing certain information

regarding prior convictions, prior violations of court orders or

rules of professional conduct, and prior proceedings in which he

or she has appeared on behalf of another person.

On August 24, 2010, the Family Court held a hearing

regarding child custody issues. Goldblatt participated by

telephone. On August 25, 2010, Goldblatt submitted for j_n camera

review a packet of materials, including a motion for leave to

file an amicus curiae brief and a proposed amicus brief

addressing his role as an advocate for persons with disabilities

under the ADA and Mazzu's rights under the ADA. Over the

5 Goldblatt cited a state district court rule when he entered his appearance in Family Court. The rule is analogous to FD Rule 1.18.

6 succeeding weeks, Goldblatt filed pleadings in the Manchester

Court, participated in an "ex parte hearing" scheduled by the

GAL, exchanged emails with the GAL and Mooney, and moved for

sanctions against Mazzu's ex-husband for filing frivolous

pleadings.

With respect to the email exchange between the GAL and

Mooney, Goldblatt became involved because he believed that those

parties were engaged in "pointless bickering." Goldblatt

informed the parties and the court of his belief in that regard.

Goldblatt and Mazzu have asserted that the GAL filed a motion in

the Manchester Court, citing an email from Goldblatt that the GAL

characterized as "threatening." Thereafter, Goldblatt filed a

memorandum in Family Court setting forth the context in which the

cited email had been sent.

On September 27, 2010, Geiger considered whether Goldblatt

was gualified to serve as Mazzu's non-attorney representative, in

light of the reguirements of FD Rule 1.18. Geiger reviewed the

items filed by Goldblatt, including his affidavit specifying his

prior litigation experience. Geiger also considered outside

sources of information regarding cases in which Goldblatt had

been involved, including an order published on a website. Geiger

concluded that Goldblatt was not gualified to serve as a non­

attorney representative in the Family Court. In her recommended

7 disposition of the issue, Geiger directed that Goldblatt be

barred from participating as Mazzu's representative.

Additionally, she directed that Goldblatt's filings be stricken

from the record. Specifically, Geiger found that Goldblatt

"cannot satisfy the elements" of FD Rule 1.18, and further

concluded that:

Mr. Goldblatt is permanently enjoined from making legal arguments, filing pleadings, or otherwise acting as Ms. Mazzu's attorney in this case. Mr. Goldblatt's appearance is struck and all filings and pleadings that he has submitted to the Court will be returned to him and treated as if they were never filed, except for . . . Mr. Goldblatt's affidavit, his Durable Power of Attorney, and his Appearance as Sima Mazzu's non­ attorney representative. Mr. Goldblatt may work with Ms. Mazzu and her attorney, if they still wish to retain him, but he may not participate in this proceeding in any way as Ms. Mazzu's non-lawyer representative. All pleadings filed relative to motions and submissions filed by Mr. Goldblatt are moot

Emery approved and entered Geiger's recommendations.

On October 4, 2010, Goldblatt filed a motion to reconsider

the September 27 order. In a recommended decision issued by

Geiger and adopted by Emery on October 25, 2010, the court

reaffirmed its injunction against Goldblatt and denied the

motion. The court found that Mazzu would suffer no prejudice

from Goldblatt's exclusion, as she had competent counsel, and she

and her attorney could continue to consult with Goldblatt

relative to ADA issues. See Compl. Ex. F (Doc. No. 1-6) .

8 On November 15, 2010, Goldblatt filed a petition for writ of

mandamus in the New Hampshire Supreme Court, seeking reversal of

the order enjoining his participation in the Family Court matter.

The New Hampshire Supreme Court denied the petition.

After the case was transferred to the Salem Court and

shortly after Mooney withdrew, Goldblatt entered an appearance as

Mazzu's non-attorney representative. Mazzu's ex-husband objected

to Goldblatt's notice of appearance, arguing that although the

matter was currently in front of the Salem Court, it was the same

case as the one where the Manchester Court had "permanently

enjoined" Goldblatt from "participat[ing] in this proceeding in

any way as Ms. Mazzu's non-attorney representative."

On October 13, 2011, in the same order where the Salem Court

granted all of Mazzu's reguests for accommodations, the court

ordered that Goldblatt would not be permitted to appear on behalf

of Mazzu as her non-attorney representative. The court

reiterated the Manchester Court's directive that Goldblatt could

continue to work with Mazzu. The court reasoned that the matter

was the same case as the Manchester Court proceeding, and

therefore, the court had no authority or reason to set aside the

Manchester Court's order prohibiting Goldblatt from representing

Mazzu.

9 II. STANDARD OF REVIEW

In considering a motion to dismiss under Federal Rule of

Civil Procedure Rule 12(b)(6), I "accept as true the well-pleaded

factual allegations of the complaint, draw all reasonable

inferences therefrom in the plaintiff's favor and determine

whether the complaint, so read, sets forth facts sufficient to

justify recovery on any cognizable theory." Martin v. Applied

Cellular Tech.,

(1st Cir. 2002). The plaintiff

must make factual allegations sufficient to "state a claim to

relief that is plausible on its face." Bell Atl. Corp. v.

Twombly,

(2007). 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 reguirement,' but it asks for more than a sheer

possibility that a defendant has acted unlawfully." Ashcroft v.

Iqbal, 129 S. C t . 1937, 1949 (2009) (citations omitted).

When a plaintiff acts pro se, this court is obliged to

construe the pleadings liberally in favor of the pro se party.

See Ayala Serrano v. Lebron Gonzalez,

(1st Cir.

1990). That review ensures that pro se pleadings are given fair

and meaningful consideration. See Eveland v. Dir, of C.I.A., 843

F .2d 46, 49 (1st Cir. 1988).

10 III. ANALYSIS

Mazzu asserts a claim under Title II of the ADA. Goldblatt

asserts claims under Title V of the ADA and § 1983, alleging

violation of his due process and egual protection rights.

Defendants move to dismiss all claims. I address each claim in

turn.

A. Mazzu's Claim

Mazzu alleges a violation of her right of access to the

courts under Title II of the ADA. Specifically, Mazzu alleges

that defendants denied her access to the courts in two ways: (1)

they prevented Goldblatt from appearing as her representative in

the Family Court proceedings; and (2) they failed to

expeditiously grant Mazzu's reguests for reasonable

accommodations.6

6 Mazzu suggests that defendants also violated her rights under the ADA by failing to seal documents related to her disability claims. Mazzu has not put forth any support for the argument that the ADA reguires documents related to an individual's disability be filed under seal. Nor has she addressed that argument in her opposition papers. Therefore, I will assume that Mazzu concedes that defendants did not violate her rights under the ADA when they failed to seal documents related to her disability. See, e.g.. United States v. Zannino,

(1st Cir. 1990) ("Judges are not expected to be mindreaders. Conseguently, a litigant has an obligation to spell out its arguments sguarely and distinctly . . . .") (internal citations and guotation marks omitted), cert, denied,

(1990).

11 Title II of the ADA provides that "no qualified individual

with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity." § 12132. "A

plaintiff seeking relief under Title II 'must establish: (1) that

he is a qualified individual with a disability; (2) that he was

excluded from participating in, or denied the benefits of a

public entity's services, programs, or activities or was

otherwise discriminated against; and (3) that such exclusion,

denial of benefits, or discrimination was by reason of his

disability.'" Kiman v. N.H. Dep't of Corrs.,

(1st Cir. 2006) (quoting Parker v. Universidad de P.R.,

(1st Cir. 2 000)).

The Supreme Court has held that Title II protects a

qualified individual's "fundamental right of access to the

courts." Tennessee v. Lane,

(2004).

Therefore, the ADA provides an "affirmative obligation to

accommodate persons with disabilities in the administration of

justice."

. Although courts must take reasonable

measures to remove any barriers to accessibility, "Title II does

not require States to employ any and all means to make judicial

services accessible to persons with disabilities . . . ."

at

12 531-32. "It requires only reasonable modifications that would

not fundamentally alter the nature of the service provided, and

only when the individual seeking modification is otherwise

eligible for the service."

(internal quotation marks

and citations omitted); see also

(b)(7).

Mazzu has asserted that she has PTSD, which qualifies her as

a disabled individual under the ADA. Although neither the

complaint nor Mazzu's objection to defendants' motion to dismiss

discusses the effects of Mazzu's PTSD, defendants do not

challenge Mazzu's alleged disability at this stage of the

litigation. Therefore, I will assume for purposes of this motion

that Mazzu is a "qualified individual with a disability" under

Title II. See, e.g., Ralph v. Lucent Tech., Inc.,

(1st Cir. 1998).

1. Goldblatt's Appearance as Mazzu's Representative

Mazzu argues that defendants denied her right of access to

the courts because they prevented Goldblatt from appearing as her

non-attorney representative. She argues that the ADA provides a

right for a non-attorney to represent her in court. She further

argues that even if such a right does not specifically exist in

the ADA, it was a reasonable accommodation that defendants denied

her. Defendants contend that the ADA does not grant a disabled

individual the right to have a non-attorney represent her in

13 court. They also argue that even if Goldblatt's representation

were considered a reasonable accommodation, the ADA does not

trump state laws setting forth certain reguirements for non­

attorney representatives.

a. ADA Right to Have Non-Attorney Representative

Mazzu argues that the Family Court's exclusion of Goldblatt

as her non-attorney representative "violated [her] [ADA] rights

to select her own advocate." Mazzu Obj. 9 (Doc. No. 63-1).

However, Mazzu does not point to any language in the ADA, or any

case law, supporting the argument that the ADA establishes the

right of a disabled litigant to have a non-attorney

representative in court, let alone the specific representative he

or she chooses. Therefore, she has not made a developed argument

that the ADA entitles her to be represented in court by a non­

attorney representative. See, e.g., Thomas v. Thomas, No. Cll-

1418 MJP,

, at *1 (W.D. Wash. Feb. 27, 2012)

("Here, Nozlic is not an attorney. While she may have

represented Thomas as an 'ADA Advocate' during administrative

proceedings, Nozlic is not gualified to represent Thomas in a

court of law.").

In any event, Mazzu fails to state a viable claim for relief

even if I assume for purposes of analysis that the ADA entitles a

disabled person to in-court representation by a non-attorney in

14 certain circumstances. Family Court rules allow Mazzu to be

represented by a non-attorney representative so long as the non­

attorney representative complies with FD Rule 1.18. The Family

Court reviewed Goldblatt's appearance, however, and determined

that Goldblatt could not represent Mazzu because he had failed to

comply with FD Rule 1.18. Although it is clear that both Mazzu

and Goldblatt vigorously disagree with this finding, they are not

free to relitigate the state court determination in this court.

Whether or not Mazzu has a right under the ADA to be represented

in this court by a non-attorney representative in certain

circumstances, she does not have a right to be represented by a

specific non-attorney representative even though that

representative has failed to comply with reasonable standards

that the state court has reguired all non-attorney

representatives to meet.

b. Goldblatt's Representation as a Reasonable Accommodation

Mazzu also alleges that even if the ADA does not establish

the right to have a non-attorney representative, Goldblatt's

representation "was a significant accommodation that Mazzu was in

fact denied." Mazzu Obj. 10 (Doc. No. 63).

As discussed, the ADA does not provide Mazzu with the right

to be represented by a non-attorney, especially if doing so would

15 trump a state law governing that area. Although it is

conceivable that a disabled litigant could be entitled to a

gualified non-attorney representative as a condition for her

disability in certain circumstances, Mazzu was not denied that

right. Rather, the court precluded her from having a non-

gualified person as her representative. Although Mazzu may have

wanted Goldblatt to be her non-attorney representative, the ADA

reguires a court to make a reasonable accommodation, not provide

the exact accommodation reguested. See, e.g.. Tucker v.

Tennessee,

(6th Cir. 2008) ("[a court] is not

reguired to meet [a disabled person's] exact reguests. What is

reguired by the ADA-and what the state court provided in this

case-is an alternative which allows disabled persons to

communicate as effectively as a non-disabled person.") (citing

); Santacrose v. CSX Transp., Inc., No. 07-15532,

, at *1 (11th Cir. Aug. 5, 2008) ("While

[plaintiff] was not given the precise accommodation he reguested

. . . , a gualified individual with a disability is not entitled

to the accommodation of his choice, but only to a reasonable

accommodation.") .

Throughout almost the entire Family Court proceeding, Mazzu

was represented by counsel who could and did speak on her behalf

at court proceedings. Although Mazzu argues that because she is

16 currently without counsel in the Family Court proceeding she has

a right to be represented in court by Goldblatt, that is simply

not supported by the law, especially when the Family Court

concluded that Goldblatt failed to comply with FD Rule 1.18.

"The ADA mandates reasonable accommodation of people with

disabilities in order to put them on an even playing field with

the non-disabled; it does not authorize a preference for disabled

people generally." Felix v. N.Y.C. Transit Auth.,

(2d Cir. 2003).

In short, where a state court allows an individual to be

represented by either an attorney or a non-attorney, it does not

violate the ADA to reguire that representative to follow certain

state procedures or rules in order to appear in court.

Therefore, Mazzu's claim under the ADA based on defendants'

exclusion of Goldblatt as Mazzu's non-attorney representative

cannot stand.

2. Initial Denial and Subsequent Delay In Granting Accommodations

Mazzu alleges that defendants violated her rights under the

ADA by initially denying and subseguently failing to

expeditiously grant her reguests for accommodations. Mazzu first

reguested accommodations from the Manchester Court in May 2009.

Those reguests were denied as unreasonable by a judge and marital

17 master who are not defendants in this case. Although Mazzu moved

to reconsider this determination, she settled the case before the

court could rule on the motion. When the case resumed the

following year, Geiger and Emery were the presiding officials who

directed Mazzu to resubmit her reguests for accommodations and

explain why the accommodations were necessary. Although the

court did not act on the reguested accommodations before the case

was transferred to the Salem Court, it allowed Mazzu to appear

telephonically at all hearings, thereby rendering many of her

reguests moot. The Salem Court eventually granted all of Mazzu's

reguested accommodations.

Other than her May 2009 reguest for accommodations, Mazzu

has not alleged that any of her reguests were denied. Moreover,

even though the Manchester Court issued an order denying the May

2009 reguest, Mazzu does not allege that she ever had to attend

any hearing or court proceeding without her reguested

accommodations. Instead, her allegations make clear both that

she has attended every proceeding telephonically, and that the

Salem Court has granted all of her reguests for accommodations.

Therefore, she has not sufficiently alleged that defendants

denied her reasonable accommodations under the ADA.

Mazzu also suggests that the delay in granting her reguests

amounts to a violation of the ADA. Specifically, Mazzu alleges

18 that her ailments are "exacerbated by the constant and

unrelenting psychological and emotional stress of the litigation

in which she is and continues to be an unwilling participant. To

her, because of her condition, justice delayed is justice

denied." Compl. 5 94 (Doc. No. 1). This claim fails for two

reasons.

First, Mazzu never had to attend any court proceeding

without her reguested accommodations. She does not explain how

the delay in granting the accommodations caused her any injury.

Although it may have been inconvenient for her attorney to

resubmit her reguests multiple times, that does not amount to a

violation of the ADA. Mazzu's allegations concerning stress seem

to be directed toward the stress of the litigation itself, not

stress caused by a delay in granting accommodations.

Second, because her reguest was ultimately granted and she

was allowed to appear telephonically while the Family Court

considered her reguest, Mazzu's allegations do not support a

theory that the delay in granting her reguests for accommodations

was motivated by "disability-based animus." Forestier Fradera v.

M un. of Mavagez,

(1st Cir. 2006) (showing of

delay in a municipality's accommodation of a plaintiff's

disability, without more, was insufficient to establish the

disability-based animus reguired for actionable discrimination

19 under Title II). Therefore, Mazzu has not alleged a claim under

the ADA.

Accordingly, defendants are entitled to dismissal of Mazzu's

claim under the ADA.

B. Goldblatt's Claims

1. Title V of the ADA

Goldblatt brings claims under § 12203(a) & (b) for

retaliation and interference. He alleges that defendants

violated the ADA's retaliation and interference provisions when

they enjoined him from proceeding as Mazzu's non-attorney

representative. Defendants argue that Goldblatt has not alleged

facts supporting a retaliation or interference claim,

a. Retaliation

The anti-retaliation provision of Title V of the ADA

provides that "[n]o person shall discriminate against any

individual who has opposed any act or practice made unlawful by

this chapter or because such individual made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing under this chapter." § 12203(a). "To

establish a claim of retaliation, a plaintiff must show that (1)

[he] engaged in protected conduct, (2) [he] suffered an adverse .

. . action, and (3) there was a causal connection between the

protected conduct and the adverse . . . action." Freadman v.

20 Metro. Prop. & Cas. Ins. Co.,

(1st Cir. 2007).

"The essence of a retaliation claim is that the plaintiff engaged

in conduct protected by the Constitution or by statute, the

defendant took an adverse action against the plaintiff, and this

adverse action was taken (at least in part) because of the

protected conduct." Corujo-Marti v. Triple-S, Inc.,

(D.P.R. 2007) (citing Sifre v. Dep't of Health,

(D.P.R. 1999), aff'd ,

(1st Cir.

2000)).

Defendants argue that Goldblatt has not alleged a causal

connection between his advocacy on behalf of Mazzu and the

court's decision that he could not act as her non-attorney

representative. Goldblatt essentially argues that defendants'

purported reasons for excluding him as Mazzu's non-attorney

representative are "pretextual," and so there is no possible

reason other than retaliation. Although allegations that a

defendant's explanation for supposed retaliatory actions are

pretextual may, in certain cases, be enough to support a causal

connection, that is not the case here.

Goldblatt invokes the phrase "pretext" numerous times in the

complaint. His allegations, however, suggest only that

defendants' reasoning for excluding him as Mazzu's non-attorney

representative was incorrect, not that it was a pretext for

21 retaliation. See, e.g., Compl. 5 14 (Doc. No. 1) (the

defendants' reasoning was "[biased on [Geiger's] misreading and

erroneous interpretation of the documents upon which the Order

relied"). Allegations that defendants' reasoning was erroneous

are not enough to adeguately allege pretext. See, e.g., Fuentes

v. Perskie,

(3d Cir. 1994) ("[T]he plaintiff

cannot simply show that the [defendant's] decision was wrong or

mistaken, since the factual dispute at issue is whether

[retaliatory] animus motivated the [defendant], not whether the

[defendant] is wise, shrewd, prudent, or competent"). Therefore,

Goldblatt has not alleged any facts to support a claim that

defendants' reasoning was pretextual.

Even if Goldblatt had plead pretext adeguately, allegations

of pretext are not always sufficient to allege a retaliatory

motive. "The ultimate guestion is whether the [defendant]

intentionally discriminated, and proof that the [defendant's]

proffered reason is unpersuasive, or even obviously contrived,

does not necessary establish that the plaintiff's proffered

reason . . . is correct." Reeves v. Sanderson Plumbing Prods.,

Inc.,

(2000) (internal guotation marks and

citations omitted); see also McDonough v. City of Quincy,

(1st Cir. 2006) (applying Reeves to a claim of

retaliation). Thus, even when the plaintiff has alleged facts

22 suggesting that the defendant's proffered reasoning was

pretextual, "there will be instances where . . . no rational

factfinder could conclude that the action was discriminatory."

Reeves,

; see also Brandon v. O'Mara, No. 10 Civ.

5174(RJH),

, at *8 (S.D.N.Y. Sept. 28, 2011)

("Even if [plaintiff] is correct that the Academy's reasons for

rating her unsatisfactory were erroneous or pretextual, she has

only shown that the reasons for the rating were not those that

the Academy gave; she has not shown anything about what the

reasons actually were.").

Viewing Goldblatt's complaint under the 12(b) (6) standard,

he has not alleged facts that suggest a retaliatory-animus.

Goldblatt specifically admits that he does not know (and

therefore, does not allege) defendants' motive in precluding him

from acting as Mazzu's non-attorney representative. His

allegations provide no possible reason, plausible or implausible

for defendants to retaliate against him for advocating for Mazzu

The plausibility of Goldblatt's retaliation claim is further

undermined because defendants allowed Goldblatt to continue to

assist Mazzu, just not as her in-court representative.

"Where a complaint pleads facts that are 'merely consistent with

a defendant's liability, it 'stops short of the line between

possibility and plausibility of 'entitlement to relief.'" Igbal 129 S. C t . at 1949 (quoting Twombly,

).

Therefore, Goldblatt has not adequately alleged a claim for

retaliation.

In any event, Goldblatt's claim that defendants' decision

was pretextual hinges on the argument that defendants' decision

was wrong. Goldblatt, however, is collaterally estopped from

challenging defendants' reasoning.

Under New Hampshire law, collateral estoppel bars a party

from relitigating "any question of fact that was actually

litigated and determined against [him] in a prior suit." State

v. Charpentier,

(1985). For collateral estoppel

to apply, the party against whom collateral estoppel is sought

must have had a "full and fair opportunity to litigate" the issue

and a final judgment must have been rendered. Aubert v. Aubert,

(1987) .

Here, after defendants ordered Goldblatt not to act as

Mazzu's non-attorney representative, Goldblatt filed a motion for

reconsideration. Defendants denied the motion. Shortly

thereafter, Goldblatt filed a petition for writ of mandamus with

the New Hampshire Supreme Court seeking to reverse defendants'

order. The New Hampshire Supreme Court denied the petition.

Thus, Goldblatt had a full and fair opportunity to litigate the

merits of defendants' order and the New Hampshire Supreme Court

24 issued a final judgment. Goldblatt is collaterally estopped from

arguing that defendants' reasoning for excluding him as Mazzu's

non-attorney representative was pretextual.

b. Interference

Goldblatt further alleges that he was subject to

interference in violation of § 12203(b). The interference

statute provides that "[i]t shall be unlawful to coerce,

intimidate, threaten, or interfere with any individual in the

exercise or enjoyment of, or on account of his or her having

exercised or enjoyed, or on account of his or her having aided or

encouraged any other individual in the exercise or enjoyment of,

any right granted or protected by" the ADA. § 12203 (b) . To

adeguately allege a claim of interference, Goldblatt must meet

the same reguirements necessary to assert a claim for retaliation

under § 12203(a). See Vazguez v. Mun. of Juncos,

(D.P.R. 2010); see also Reg'1 Econ. Cmty. Action

Program, Inc. v. City of Middletown,

, 53-54 (2d Cir.

2002) .

Goldblatt argues that defendants' act of enjoining him from

proceeding as Mazzu's non-attorney representative is enough to

show "interference" under § 12203(b). However, he again ignores

the actual elements of the claim; specifically, the reguirement

that he allege a causal connection between defendants' actions

25 and any assistance he provided to Mazzu in bringing an ADA claim.

As discussed above, Goldblatt did not allege facts to support a

retaliation claim under the ADA and, therefore, did not allege

facts to support an interference claim.

Accordingly, because Goldblatt has not alleged a causal

connection between defendants' order excluding his representation

and his assistance in Mazzu's ADA claim, his retaliation and

interference claims must fail.

2.

Goldblatt alleges that defendants violated § 1983 because

they deprived him of his due process rights without using

constitutionally adeguate procedures. He further asserts that

defendants violated his egual protection rights by not allowing

him to proceed as Mazzu's non-attorney representative when other

courts allow him to act as a representative for disabled

litigants. Defendants argue that Goldblatt does not have any

protected property interest or liberty interest that reguired

procedural due process. They further contend that Goldblatt has

7 Goldblatt contends that he has four separate causes of action: a claim under the ADA, a due process claim, an egual protection claim, and a § 1983 claim. There is no separate cause of action for a violation of § 1983. Cruz-Erazo v. Rivera- Montanez,

(1st Cir. 2000) . Rather, § 1983 is the vehicle through which an individual may bring suit for constitutional violations. Therefore, Goldblatt's due process claim and egual protection claim are brought under § 1983.

26 not adequately alleged facts to support an equal protection

claim.

a. Procedural Due Process

To establish a procedural due process claim, a plaintiff in

Goldblatt's position must show that defendants deprived him of a

protected liberty or property interest without constitutionally

adequate process. Aponte-Torres v. University of P.R.,

, 56 (1st Cir. 2006); see Perez-Acevedo v. Rivero-Cubano,

(1st Cir. 2008). Thus, "to determine whether due

process requirements apply in the first place, we must look . . .

to the nature of the interest at stake." Bd. of Regents v. Roth,

(1972). If the plaintiff adequately alleges

a protected interest, "the question remains what process is due."

Morrissey v. Brewer,

(1972).

i. Property Interest

To have a protected property interest, an individual must

show more than a mere unilateral expectation of a benefit. See,

e.g., Roth,

. "He must, instead, have a

legitimate claim of entitlement to it." I_d. Thus, a plaintiff

must allege that there were "rules or mutually explicit

understandings that support his claim of entitlement to the

benefit." Perry v. Sindermann,

(1972); see

also Roth,

(property interests are not created by

27 the Constitution, but "they are created and their dimensions are

defined by existing rules or understandings that stem from an

independent source such as state law-rules or understandings that

secure certain benefits and that support claims of entitlement to

those benefits"). Therefore, rarely will an opportunity that

rests on defendants' discretion rise to a property right

protected by the due process clause. See, e.g., Beitzell v.

Jeffrey,

(1st Cir. 1981); Medina v. Rudman, 545

F .2d 244, 250-51 (1st Cir. 1976).

Goldblatt alleges that he had a protected property interest

in participating as Mazzu's non-attorney representative, which

was established both by the ADA and FD Rule 1.18. Defendants

argue that neither the ADA nor FD Rule 1.18 creates a property

interest for a non-attorney to act as an attorney.

As I discussed in addressing Mazzu's ADA claim, the ADA does

not establish the right for a non-attorney to act as a disabled

individual's attorney in court. That is particularly the case

when doing so would conflict with state law reguirements. See

Harris v. Mills,

(2d Cir. 2009) . Indeed,

Goldblatt himself admits that he "cannot cite a case law

reference in support of" his position. Goldblatt Obj. 15 (Doc.

No. 62). Therefore, the ADA does not establish a property

interest in Goldblatt's in-court representation as an attorney.

28 Nor does FD Rule 1.18 provide such a property interest. FD

Rule 1.18 establishes specific minimum requirements which must be

met for an individual to proceed as a non-attorney

representative. It does not purport to grant a non-attorney

representative who complies with the rule an entitlement to

represent third parties in Family Court. Because the rule does

not restrict the court's discretion to exclude non-attorneys from

representing third parties in appropriate cases even if they have

complied with FD Rule 1.18, the rule does not give non-attorneys

a protectable property right to represent third parties. See

Leis v. Flynt,

(1979) (where power to

approve pro hac vice appearances is committed to the court's

discretion, they do not give rise to a protectable property

interest).

ii. Liberty Interest

Goldblatt also suggests that he was deprived of a

reputation-based liberty interest, claiming that his

"professional reputation [was] damaged[] by the Defendants'

actions related to his being 'enjoined from making legal

arguments, filing pleadings, or otherwise acting as Ms. Mazzu's

non-attorney representative.'" Compl. 5 8(c) (Doc. No. 1).

The First Circuit has determined that

29 [T]he Fourteenth Amendment procedurally protects reputation only where (1) government action threatens it, (2) with unusually serious harm, (3) as evidenced by the fact that employment (or some other right or status) is affected. Moreover, the municipality terminating the employee must also be responsible for the dissemination of defamatory charges, in a formal setting (and not merely as the result of unauthorized "leaks"), and thereby significantly have interfered with the employee's ability to find future employment.

Silva v. Worden,

(1st Cir. 1997) (citations

and internal guotation marks omitted). Thus, even when a false

and defamatory reason is cited for discharging an individual, the

individual is not deprived of "liberty" unless that reason is

communicated to others, because otherwise, "it cannot properly

form the basis for a claim that [individual's] interest in his

'good name, reputation, honor, or integrity' was thereby

impaired." Bishop v. Wood,

(1976) (guoting

Wisconsin v. Constantineau,

(1971)).

Here, other than guoting the standard from Wisconsin,

Goldblatt does not address his asserted liberty-based reputation

claim. Goldblatt does not explain how his reputation was in any

way damaged by the court's order enjoining his participation from

the case because of his non-compliance with a rule. Nor does he

allege that any other court is even aware of the order.

Therefore, Goldblatt has not alleged a liberty-based property

interest in his reputation.

30 iii. Adequacy of Process Provided

Goldblatt's due process claim fails even if FD Rule1.18

gives him a protectable property or liberty interest in

representing third parties in Family Court in certain

circumstances. Goldblatt was given an opportunity to comply with

Rule 1.18 and, after his effort failed, he was given an

opportunity to contest the court's adverse ruling both in Family

Court and in the State Supreme Court. The due process clause

does not entitle him to more process than he received.

Accordingly, his due process claim necessarily fails even if FD

Rule 1.18 gives him a protectable property or liberty interest in

representing third parties in Family Court,

b. Equal Protection

Goldblatt alleges that defendants violated his right to

egual protection, but does not explain the basis for that

allegation in his complaint. At oral argument on defendants'

initial motion to dismiss, Goldblatt classified his egual

protection claim as a "class of one" claim. Goldblatt alleges

that he "was treated differently by the Defendants than he was by

two (2) other judges in the State of New Hampshire where he was

allowed to participate in a Superior Court and the Supreme Court

of New Hampshire under the terms of the same statute that

Defendants used to enjoin him from the Mazzu case." Goldblatt

31 Resp. 5 3(a) (Doc No. 75)

The Equal Protection Clause of the Fourteenth Amendment

guarantees that "all persons similarly situated should be treated

alike." City of Cleburne Tex, v. Cleburne Living Ctr.,

(1985). As Goldblatt concedes, he does not allege that

he belongs to a protected class, and instead brings a "class-of-

one" equal protection claim. Such claims necessarily fail unless

the plaintiff can demonstrate that he was "intentionally treated

differently from others similarly situated and that there is no

rational basis for the difference in treatment." Village of

Willowbrook v. Olech,

(2000). Here, as I have

explained, the state court determined that Goldblatt could not

appear in court on Mazzu's behalf because he was not eligible to

represent her under FD Rule 1.18. Goldblatt is not free to

relitigate his compliance with that rule here, and the court's

determination that he did not comply with the rule is a

sufficient justification for its ruling.

Therefore, because Goldblatt has not alleged any facts that

state a claim for an Equal Protection Clause violation,

defendants are entitled to dismissal with regard to the portion

of Goldblatt's § 1983 claim based on equal protection.

32 IV. CONCLUSION

For the reasons stated above, I grant defendants' motion to

dismiss (Doc. No. 58). The clerk shall enter judgment

accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

April 2, 2012

cc: Kenn Goldblatt, pro se Sima Mazzu, pro se Nancy J. Smith, Esg.

33