Katz, et a l . v . McVeigh, et a l . CV-10-410-JL 3/15/13

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Elena Katz et al.

v. Civil N o . 10-cv-410-JL Opinion N o .

Brian McVeigh et al.

MEMORANDUM ORDER

The plaintiffs, Elena Katz and Arnold Grodman,1 have brought

a 32-count amended complaint against 24 separately named

defendants, principally alleging violations of the United States

Constitution and state law. The plaintiffs’ claims arise out of

their loss of legal custody of their daughter, Eleonora, to the

New Hampshire Department of Children, Youth and Families (“DCYF”)

in November 2009, followed by efforts by various law enforcement

officials to secure physical custody of Eleanora and, ultimately,

her placement at a privately run residential rehabilitation

facility. This court has subject-matter jurisdiction under

(federal question) and 1367 (supplemental

jurisdiction), except to the extent that the plaintiffs’ claims

1 Stuart Grodman, Arnold Grodman’s brother, is also named as a plaintiff in the amended complaint, but was not involved in the vast majority of the events giving rise to the litigation. For ease of reference, then, the court will use “plaintiffs” to refer to Elena Katz and Arnold Grodman, “Grodman” to refer to Arnold Grodman, and “Stuart Grodman” to refer to Stuart Grodman. seek review of final state-court judgments or other relief this

court is not empowered to grant. See infra Part III.A.2-3.

The defendants have all moved either to dismiss the

plaintiffs’ amended complaint for failure to state a claim, see

Fed. R. Civ. P. 12(b)(6), or for judgment on the pleadings, see

Fed. R. Civ. P. 12(c). For the reasons explained in detail

below, those motions are granted. The amended complaint

characterizes all of the efforts to remove Eleonora from the

plaintiffs’ custody, and place her in state custody, as part of a

conspiracy to ensure the state’s receipt of federal monies on her

behalf--or as retaliation for complaints the plaintiffs made

several years earlier about their daughter’s experiences in the

Timberlane Regional School District. Those claims are not

plausibly alleged, particularly against defendants (such as the

many law enforcement officers and agencies named by this lawsuit)

who had nothing to gain from the state’s receipt of those monies

or any reason to know or care of the plaintiffs’ gripes against

Timberlane. Insofar as the amended complaint plausibly states a

retaliation claim against Timberlane (or its one employee who is

named as a defendant), that claim is based on conduct that

occurred outside of the limitations period.

The plaintiffs also claim violations of their rights to

family integrity under the due process clause of the Fourteenth

2 Amendment, and to be free from arrest and detention without

probable cause under the Fourth Amendment. Insofar as the

plaintiffs’ substantive due process claims do not impermissibly

seek review of the state courts’ decisions awarding custody, and

later guardianship, of Eleonora to DCYF, they are barred by

qualified immunity, because no reasonable official in the

position of any of the defendants involved in those proceedings

would have believed he was violating the plaintiffs’

constitutional rights, as opposed to pursuing the state’s

legitimate interest in protecting the health and welfare of its

children. The plaintiffs also fail to state a substantive due

process claim arising out of the allegedly excessive medication

administered to Eleonora during her stay at the rehabilitation

facility, because neither the facility nor her doctor there are

state actors subject to constitutional restrictions.

Qualified immunity also bars the plaintiffs’ claims arising

out of their arrest and detention, because, to the limited extent

any of the named defendants even participated in those

deprivations, they were amply supported by probable cause that

the plaintiffs had knowingly removed Eleonora from the state to

interfere with the DCYF’s right to custody of her, which is a

felony under New Hampshire law. The plaintiffs’ other claims

against the law enforcement officers (e.g., for allegedly

3 requesting Katz’s detention without bail) also do not state a

violation of any clearly established constitutional right and are

therefore barred by qualified immunity as well.

As to the other claims set forth in the amended complaint:

(1) many assert the rights of Eleonora, so the plaintiffs cannot

bring those claims here without an attorney, which they have been

unable to secure since their counsel was granted leave to

withdraw; (2) others, including a claim that Boston Police

officers made a warrantless entry into Stuart Grodman’s

apartment, are barred by the statute of limitations; and

(3) still others, including state-law negligence and defamation

claims, are pled wholly in conclusory terms (to the limited

extent they do not rely on privileged statements and conduct).

Accordingly, the amended complaint is dismissed in its entirety.

I. Applicable legal standard

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

complaint must make factual allegations sufficient to “state a

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

Iqbal, 129 S . C t . 1937, 1949 (2009) (quoting Bell Atl. Corp. v .

Twombly,

4 4 , 570 (2007)). In ruling on such a motion,

the court must accept as true all well-pleaded facts set forth in

the complaint and must draw all reasonable inferences in the

4 plaintiff’s favor. See, e.g., Martino v . Forward Air, Inc.,

, 2 (1st Cir. 2010). This indulgence does not extend,

however, to “statements in the complaint that merely offer legal

conclusions couched as fact or threadbare recitals of the

elements of a cause of action,” which are disregarded. Ocasio-

Hernandez v . Fortuno-Benet,

, 12 (1st Cir. 2011)

(quotation marks, bracketing, and ellipse omitted).

A court ruling on a motion to dismiss under Rule 12(b)(6)

may “consider not only the complaint but also facts extractable

from documentation annexed to or incorporated by reference in the

complaint and matters susceptible to judicial notice.” Rederford

v . U.S. Airways, Inc.,

0 , 35 (1st Cir. 2009) (quotation

marks omitted). This includes matters of public record, such as

“documents from prior state court adjudications.” Giragosian v .

Ryan,

9 , 66 (1st Cir. 2008) (quotation marks omitted).

Despite the plaintiffs’ objection, then, the court can consider

the records of their prior proceedings in ruling on the motions

to dismiss.2 See

To the extent the plaintiffs’ allegations

of what happened in those proceedings are at odds with the

2 Indeed, while the plaintiffs complain that the defendants have submitted only those records that support their position “without regard to context, subsequent court proceedings, appeals, etc.” the plaintiffs could have responded by submitting whatever records they claim the defendants omitted. See Giragosian,

6 . The plaintiffs did not do s o .

5 records, moreover, the court is not required to accept the

plaintiffs’ version. See Rederford,

n.4 (noting

that, even in ruling on motions to dismiss, “courts need not

accept facts which have since been conclusively contradicted”).3

Furthermore, as the defendants point out, at least some of

the findings and rulings reached by the courts in those prior

proceedings are binding on Katz or Grodman by virtue of the

doctrine of collateral estoppel. “Under federal law, a state

court judgment receives the same preclusive effect as it would

receive under the law of the state in which it was rendered.”

Dillon v . Select Portfolio Servicing,

5 , 80 (1st Cir.

2011). The New Hampshire doctrine of collateral estoppel “bars a

party to a prior action from relitigating any issue or fact

actually litigated and determined in the prior action” so long as

“(1) the issue subject to estoppel [is] identical in each action;

(2) the first action [ ] resolved the issue finally on the merits;

and (3) the party to be estopped [ ] appeared as a party in the

first action.” In re Michael E . ,

2 0 , 523-24 (2011).

At a minimum, then, the plaintiffs are collaterally estopped

from relitigating the Family Division’s decision granting DCYF

3 All of the foregoing standards likewise apply to a motion for judgment on the pleadings under Rule 12(c). See Gray v . Evercore Restructuring L.L.C.,

2 0 , 324 (1st Cir. 2008

6 guardianship over Eleonora until her eighteenth birthday. See

infra Part II.A.5.b. As described in more detail below, that

guardianship action (1) involved an issue identical to one of the

many the plaintiffs have raised here, see infra Part III.C.1.b,

i.e., whether awarding guardianship to DCYF was in Eleonora’s

best interests, see

, III(a),

(2) resolved that issue on the merits, and finally, see

§ 567-A:4 (“findings of fact of the judge of probate are

final”), 4 and (3) involved both of the plaintiffs here.

The defendants argue that other decisions against the

plaintiffs, in both this court and the state courts, are also

entitled to collateral estoppel effect here. This court need

not, and does not, reach those arguments. As just discussed,

however, this court has taken judicial notice of what happened in

these other proceedings (e.g., whether a filing sought ex parte

relief, or whether a warrant issued), notwithstanding the

plaintiffs’ contrary versions of some of those events.

4 Although proceedings for the guardianship of the person of a minor are now conducted in the Family Division, and no longer in the Probate Division, see

-D:2, VIII, the New Hampshire Supreme Court has applied this statute in reviewing a guardianship order by the Family Division, see In re Matthew L., ___ N.H. ___,

8 4 , 686 (2012).

7 II. Background5

A. Factual history

1. Plaintiffs’ disputes with Timberlane

a. Plaintiffs’ protests and Timberlane’s alleged retaliation

After home-schooling Eleonora for a period, the plaintiffs

enrolled her in the Timberlane Regional School District, a New

Hampshire public school system, in November 2002. At that time,

Eleonora was 12 years old and had been diagnosed with both

juvenile diabetes and a non-verbal learning disability. By

January 2003, Timberlane had put in place--with the plaintiffs’

approval--an individualized education plan (“IEP”) identifying

her as a child with a disability, and providing for “numerous

modifications to the regular educational curriculum,” under the

Individuals with Disabilities Education Act,

et

seq. M r . G v . Timberlane Sch. Dist.,

0 2 , 3-4

(rejecting plaintiffs’ claims that, inter alia, this IEP violated

the IDEA) (Barbadoro, J . ) , aff’d without opinion, N o . 07-1279

(1st Cir. June 1 2 , 2008).

5 In quoting from the amended complaint and the plaintiffs’ objection to the motions to dismiss, the court has taken the liberty of correcting spelling and grammatical errors, which are prevalent throughout those documents (in spite of the fact that they were drafted by counsel before he withdrew).

8 The plaintiffs allege that, in April 2004, they “became

frustrated with the unwillingness and/or inability of

[Timberlane] to support [the] IEP, and organized a public

demonstration protesting [Timberlane’s] policies.” The

plaintiffs also “placed a small cardboard sign” on Elenora’s

backpack stating “slogans” expressing disapproval with her

education. Katz filed complaints over Eleonora’s treatment by

Timberlane personnel with “various state agencies that oversee

the conduct of [ ] Timberlane and its employees.”

The plaintiffs allege that, in retaliation for these and

other efforts on their part “to legally advocate for appropriate

special education” for Eleonora, Timberlane officials, including

defendant Edwina Lovett, “conspired to develop and implement a

plan for keeping [the plaintiffs] on the defensive.” The

plaintiffs charge that this conspiracy--which also included

defendant Brian McVeigh, a DCYF employee, and “other [Timberlane]

officials whose identities are not yet known”--“decided to make

reports of abuse and or neglect against [the plaintiffs] until

[Eleonora] was in state custody.” The plaintiffs further charge

that Lovett “has been instrumental in making a steady stream of

provably false allegations against [them] to ensure that

[Eleonora] is kept in state custody so that [Timberlane] can

continue receiving financial benefits.” The plaintiffs allege

9 that, prior to April 2006, Lovett made three complaints to DCYF

that they were neglecting Eleonora, only to have DCYF determine

that each was unfounded.

b. Order for placement at Brattleboro Retreat

In the meantime, the plaintiffs’ disputes with Timberlane

over Eleonora’s education continued in this court, as well as at

due process hearings before the New Hampshire Department of

Education. Eventually, in March 2006, a hearing officer there

found that, while attending a private educational program,

Eleonora had “attempted to harm herself by pulling a charm off

her charm bracelet and putting it in her mouth saying that she

‘needed to choke on this tonight and die.’” In re Eleonora G.,

IDPH-FY-06-10-121 (N.H. Dep’t Educ. Mar. 2 4 , 2006), slip o p . at

4. The hearing officer also found that Eleonora had been

“experiencing psychotic symptoms,” including “auditory and visual

hallucinations, scattered thoughts, pressured speech, and

difficulty staying on one topic,”

at 5 , during the private

educational placement,

at 8 .

Nevertheless, the hearing officer found, the plaintiffs had

“never advised [Timberlane] that Eleonora had an active

psychiatric disorder,”

at 1 1 , and had “not granted their

written consent to reevaluate her” for that or other potential

handicaps so that Timberlane could revise her IEP,

. The

10 plaintiffs also demonstrated an “apparent inability to manage

Eleonora’s diabetes” during the private educational placement,

“consistently provid[ing] [her] with sweet foods” despite her

doctor’s contrary orders.

at 8 . Her blood sugar levels over

that period “were consistently in excess” of the “target range,”

often by a multiple of two or more.

at 7 .

Accordingly, the hearing officer ruled, “[t]he unique

circumstances posited in this case warrant Eleonora’s placement

in an interim educational alternative placement, such as the

Brattleboro Retreat, for the purposes of conducting a

comprehensive assessment.”

. In fact, the hearing

officer directed the plaintiffs to “apply for their daughter’s

admission to the Brattleboro Retreat” within five business days,

“and immediately admit her for assessment and treatment if and

when approved.”

at 1 7 . The plaintiffs did not properly

appeal this order.6 Nevertheless, they complain here that having

6 The plaintiffs attempted to challenge the hearing officer’s March 2006 decision through a motion for preliminary injunction they filed in M r . G, supra. See M r . G v . Timberlane Reg’l Sch. Dist., N o . 04-cv-188 (D.N.H. May 3 , 2006), rep’t & rec. adopted (D.N.H. June 1 8 , 2006), appeal dismissed, N o . 06-2396 (1st Cir. Feb. 7 , 2007). In recommending denial of that motion, Magistrate Judge Muirhead ruled, among other things, that he lacked jurisdiction to hear a challenge to that decision as part of the Mr. G action, id. at 18-19, noting Katz’s contention that she had appealed the hearing officer’s March 2006 decision through another action, id. at 1 5 . That action, however, was subsequently dismissed because Katz had not exhausted her

11 Eleonora “committed to an acute care psychiatric facility” went

“against the advice of her treating physician” and was “illegal.”

2. State court neglect and dispositional proceedings

a. Neglect proceedings

i. Family Division

In April 2006, DCYF filed a neglect petition against each of

the plaintiffs in the then-Brentwood Family Division of the New

Hampshire state courts. In re Grodman, Nos. 2006-118, 2006-110

(N.H. Family Div. Apr. 1 1 , 2006). The petitions alleged, among

other things, that, while Eleonora had not attended school since

her suicide attempt in February 2006, the plaintiffs had not

contacted Brattleboro Retreat as ordered by the hearing officer,

nor had they enrolled Eleanora at “any similarly equipped

facility or combination of facilities.” The petitions further

alleged that, absent judicial intervention, Eleonora’s health

would “remain at risk to suffer serious impairment due to her

administrative remedies. See Katz v . Timberlane Reg’l Sch. Dist., N o . 06-cv-149 (D.N.H. July 1 9 , 2006), rep’t & rec. adopted (D.N.H. Aug. 1 0 , 2006), appeal dismissed, N o . 06-2288 (1st Cir. Feb. 5 , 2007). In any event, this court does not accord collateral estoppel effect to the hearing officer’s findings, see Part I , supra, and has taken judicial notice of his decision (which the plaintiffs themselves discuss in their amended complaint) solely for background purposes. As discussed below, any claims here challenging the decision, or any defendant’s role in procuring i t , are barred by the statute of limitations. See infra note 11 and Part III.B.2.b.

12 parents’ ongoing refusal to follow medical/educational

professionals’ recommendations and orders.”

Following a hearing, which the plaintiffs attended, the

Family Division made a preliminary finding that both of the

plaintiffs had neglected Eleonora, reasoning that her “health is

very likely to suffer serious impairment due to [the plaintiffs’]

lack of proper parental care or control.” In re Grodman, Nos.

2006-118, 2006-110 (N.H. Family Div. Apr. 1 8 , 2006). While the

Family Court awarded legal supervision of Eleonora to DCYF, she

was permitted to remain in the plaintiffs’ physical custody,

though they were ordered to “comply with all orders of the New

Hampshire Department of Education,” id., including, presumably,

the order to apply for Eleonora’s admission to the Brattleboro

Retreat. The Family Court also joined Timberlane as a party for

the purpose of “[p]roviding and paying for any educational

needs.” Id.

Around this time, the plaintiffs allege, defendant Lin Roy

was appointed as Eleonora’s guardian ad litem. The plaintiffs

further allege that Eleonora “was forcibly removed from her home

and placed in” the Brattleboro Retreat (though they do not say

when or by whom), where she remained for 29 days. The plaintiffs

allege that Eleonora was then placed at the Philbrook Center, a

state residential facility, where she remained for 56 days.

13 Eleonora was returned to the physical custody of her parents

in October 2006, when, they allege, they began home-schooling

her, having “waived all public school services.” The plaintiffs

allege that, after they did s o , unspecified “defendants continued

to smear [the plaintiffs], calling them mentally ill,

obstructionist and hostile, among other things.” The plaintiffs

further allege that, even though “they clearly expressed to DCYF

. . . that [they] did not want to have any personal contact with

defendant Brian McVeigh” as early as January 2006, he “continued

to contact [them] at the Grodman home, including monthly visits,”

through November 2007.

ii. Superior Court

In the meantime, Katz appealed the Family Court’s finding of

neglect against her to the Rockingham County Superior Court,

which conducted a de novo hearing beginning on a day in May 2007

and concluding over three days in August 2007. See In re

Grodman, N o . 06-J-011 (N.H. Super. C t . Sept. 1 3 , 2007). Katz

attended and called at least one witness. After the hearing, the

Superior Court concluded that “from January, 2006 through April

2006, the [plaintiffs] neglected Eleonora both educationally and

with respect to proper diabetes management.” Id. at 1 .

The Superior Court found, among other things, that the

plaintiffs “consistently mismanaged their daughter’s diabetes

14 such that many blood glucose levels were dangerously high . . . .

Instead of working with the providers to manage Eleonora’s

diabetes, the [plaintiffs] regularly requested documentation and

letters from the providers for use in litigation.” Id. at 4 .

The Superior Court found that the plaintiffs “appear more

interested in litigation and avoiding personal accountability for

their child’s care than they are about appropriately acting in

their child’s best interests.” Id. at 5 . The Superior Court

also found that, “[r]egardless of whether, in hindsight, it was

ultimately appropriate to enroll Eleonora in Brattleboro Retreat,

. . . the [plaintiffs], during the time period in question,

refused to work collaboratively with [Timberlane] in addressing

Eleonora’s serious psychiatric needs.” Id. at 3-4.

b. Dispositional proceedings

After entering the neglect finding, the Superior Court held

a dispositional hearing on November 3 0 , 2007. 7 In re Grodman,

7 Under New Hampshire law, “[i]f [a] court finds that a child is abused or neglected, the court may order” one of several “dispositions,” including that “[l]egal custody may be transferred to a child placing agency.”

-C:19, III(a). The court may also “set forth conditions of behavior by a parent,” including to “[p]ermit a parent . . . to visit supervised or otherwise, or have contact with the child at stated periods and under such conditions as the court may order,” and to “[a]bstain from harmful conduct with respect to the child.”

§ 169-C:19, II(a)(2). And “[t]he court may order any . . . child to undergo individual or family therapy, or medical treatment.” Id. § 169-C:19, IV .

15 N o . 06-J-011 (N.H. Super. C t . November 3 0 , 2007). Both the

plaintiffs, as well as a guardian ad litem representing Eleonora,

Gary Paradis, attended the hearing.

At the conclusion of the hearing, the Superior Court awarded

DCYF legal custody of Eleonora, who was “to be placed in an out-

of-home placement” at Crotched Mountain, a privately run

residential school and rehabilitation facility, “for education

[and] evaluations for current medical and pyschiatric/

psychological needs.” The Superior Court found that keeping

Eleonora in the plaintiffs’ home was contrary to her welfare

because “[a]t this time, DCYF is not privy to Eleonora’s medical

and psychiatric treatment and her progress, and holds no

information about [her] homeschooling,” since the plaintiffs had

“refused to discuss Eleonora’s progress or needs” with DCYF.

While the Superior Court granted the plaintiffs visitation

rights, it required that “[a]ll visits between the [plaintiffs]

and Eleonora while [she] is attending Crotched Mountain School

shall take place off campus and shall be supervised by a parent

aide.” The order further prohibited the plaintiffs from

providing Eleonora with food or drink during their visits, or

recording them. The plaintiffs allege that these restrictions

came about through the concerted efforts of Timberlane personnel

and Crotched Mountain’s chief executive, defendant Don Shumway.

16 They also allege that “[t]hese restrictions later prevented any

contact between [Eleonora] and [Katz] for a period of two and a

half years,” but the Superior Court’s dispositional order nowhere

contains such a restriction: again, it granted visitation rights

to both Katz and Grodman.

The Superior Court further ordered that “DCYF shall have

direct access to all of Eleonora’s medical, educational,

psychological and behavioral providers, including access to all

[their] records,” specifying that the plaintiffs “shall sign all

necessary releases. Their failure to do so may result in a

finding of contempt of Court.”

In explaining its decision, the Superior Court relied on

Katz’s “obvious inappropriate behavior in dealing with all

authorities and treatment providers” and her “refusal to provide

information about Eleonora’s treatment and educational status,”

which had “rendered any award of legal oversight to [DCYF], short

of full legal custody, completely ineffectual.” The Superior

Court also reasoned that, “[i]n light of the severity of

Eleonora’s diabetes, her need for psychiatric and educational

services, and in light of [Katz’s] refusal to address her own

mental health needs,” there was “little choice but to” grant

DCYF’s request for legal custody of Eleonora and her placement at

Crotched Mountain.

17 c. Supreme Court

The plaintiffs appealed the Superior Court’s dispositional

order, as well as the underlying finding of neglect, to the New

Hampshire Supreme Court, which “affirm[ed] the orders as they

apply to Katz, and vacate[d] and remand[ed] as they apply to

Grodman.” In re Eleonora G., N o . 2007-0924 (N.H. July 8 , 2009)

(unpublished disposition). The Supreme Court upheld the Superior

Court’s finding that “Katz’s actions and/or inactions caused

[Eleonora’s] diabetes to be poorly managed and that serious

consequences to her health were likely to occur.” Id. at 2 . But

the Supreme Court agreed with Grodman that the Superior Court had

erred in “failing to treat him as party” because it had

mistakenly never docketed his appeal of the Family Division’s

neglect finding. Id. at 3 . So the Supreme Court vacated the

finding of neglect against Grodman and remanded to the Superior

Court for further proceedings, id., which, so far as the record

before this court indicates, never took place.

3. State-court contempt and enforcement proceedings

In early January 2008, DCYF filed a motion with the Superior

Court stating that the plaintiffs’ behavior since the issuance of

the dispositional order had made “clear that [they] are aware of

[ i t ] , but are electing to refuse to comply,” and, as a result,

asked the Superior Court to hold them in contempt. The Superior

18 Court refused to grant that relief ex parte, but ordered the

plaintiffs to appear at a hearing on the motion.

When that hearing took place, however, the plaintiffs’

“attorney appeared, but [they] failed to appear” personally. In

re Grodman, N o . 06-J-011 (N.H. Super. C t . Mar. 2 6 , 2008).

Immediately prior to the hearing, the plaintiffs, through their

counsel, filed a motion with the Superior Court seeking to vacate

its dispositional order and to “dismiss” the motion for contempt.

The motion stated, among other things, that the plaintiffs had

“removed [Eleonora] from the State of New Hampshire because they

fear that [she] is in mortal danger if she is again in the

custody of the State.”

At the hearing, the Superior Court found the plaintiffs in

contempt of the dispositional order. Id. More than 30 days

later, DCYF filed a motion with the Superior Court requesting the

issuance of bench warrants for the plaintiffs, stating that,

“neither [plaintiff], directly or through their attorney of

record, has surrendered their child to custody of [DCYF], nor

given any indication even of where they or their child is.” The

Superior Court granted the motion on April 3 0 , 2008.

19 4. Plaintiffs’ apprehension and subsequent criminal proceedings

a. Search and traffic stop

The plaintiffs allege that in the meantime, on January 1 6 ,

2008, McVeigh (a DCYF employee) “organized and then participated

in [a] warrantless entry and search” of Stuart Grodman’s

apartment in Boston, Massachusetts, with three Boston police

officers named as defendants here. After McVeigh and the

officers unsuccessfully attempted to contact the manager of the

building, a “maintenance man assisted the officers inside of the

apartment,” which “only had limited furniture inside of it and

was nearly empty.”

The plaintiffs also allege that, a week or so after the

Superior Court’s issuance of the bench warrants, defendant Wade

Parsons, chief of the Danville Police Department, “issued a BOLO

(‘Be On the Lookout for’)” to police in Haverhill, Massachusetts,

requesting the plaintiffs’ arrest, and Eleonora’s detention. In

response, the Haverhill Police Department stopped the plaintiffs

while they were driving in their car. But they were not taken

into custody, because, they say, “Parsons determined that he

could not arrest [them] in Massachusetts” on bench warrants

issued by a New Hampshire court.

20 b. Plaintiffs’ arrests and detention

The plaintiffs further allege that, on May 3 0 , 2008, Parsons

and defendant James Nye, an officer with the Rockingham County

Sheriff’s Department, “prepared, but failed to file criminal

complaints in the Plaistow District Court” charging the

plaintiffs with interference with custody. See

. Instead, according to that court’s records,

Parsons filed an application for arrest warrants for the

plaintiffs based on that offense, and the warrants issued, on May

3 0 , 2008. Among other things, Parsons’s warrant application

quoted the statement by the plaintiffs’ attorney in their filing

during the Superior Court proceedings that the plaintiffs had

“removed [Eleonora] from the State of New Hampshire because they

fear that [she] is in mortal danger if she is again in the

custody of the State.”

Following the issuance of the warrants, Katz was arrested in

Boston, Massachusetts, on June 5 , 2008. The plaintiffs allege

that Nye attended Katz’s arraignment and “inappropriately spoke

to” her defense attorney, saying that “all of [Katz’s] addresses

come back to U.P.S. stores so [Nye] knew that everything [Katz]

was telling [counsel] was lies.” Katz was denied bail.

The plaintiffs further allege that, after the hearing, Nye

contacted both the Social Security Administration, “ensur[ing]

21 that the [plaintiffs’] Social Security retirement payments were

stopped,” and the Bureau of Immigrations and Customs Enforcement,

“causing [it] to place an immigration hold on [Katz] without

bail.” The plaintiffs say that Nye and defendant Cathy Champion,

another employee of the Rockingham County Sheriff’s Department,

“represented to third parties that there were federal proceedings

pending against Katz in federal immigration court” (as the

plaintiffs themselves allege, there was an “immigration hold” on

Katz at that point).

Katz refused to waive extradition to New Hampshire, s o , the

plaintiffs allege, Nye and Parsons prepared a “governor’s

warrant” to secure her return to this state. The plaintiffs

allege that this warrant attached copies of the bench warrants

issued by the Superior Court on April 3 0 , 2008, referring to them

as “criminal warrants” when in fact “there were no criminal

charges brought against the [plaintiffs] until after [Katz’s]

extradition.” Again, however, the Plaistow District Court had

issued warrants for the plaintiffs’ arrest for interference with

custody on May 3 0 , 2008.

Katz was eventually extradited to New Hampshire. But the

plaintiffs allege that, until then, Katz spent approximately 90

days in jail “without bail on the request of” Nye, Champion, and

other as-yet unidentified parties. The plaintiffs further allege

22 that, following Katz’s extradition, she was jailed in New

Hampshire for approximately 40 days, including 5 days in

“solitary confinement.” The plaintiffs say that Nye and other

as-yet unidentified defendants “requested a no contact order”

prohibiting Katz from contacting Grodman “so [she] could not

obtain copies of the necessary documents to prove her

citizenship.” In fact, the plaintiffs allege, Nye and other

unnamed parties “refused to believe, despite documentary evidence

to the contrary, that [Katz] was a naturalized [United States]

citizen,” subjecting her to a “false immigration detainer” which

kept her in custody “even after [she] was granted bail.” Based

on her entry of a guilty plea, Katz was convicted on a charge of

interference with custody in Rockingham County Superior Court on

May 2 4 , 2010.

Grodman, for his part, was arrested on July 9, 2008, and

spent three days in jail. He was convicted on a charge of

criminal contempt in Rockingham County Superior Court on June 2 7 ,

2012, though his appeal of that conviction to the New Hampshire

Supreme Court is pending.

c. Eleonora’s placement at Crotched Mountain

Also on July 9, 2008, Eleonora was taken into DCYF custody

and placed at Crotched Mountain. The plaintiffs allege that, at

that point, Eleonora began “suffering greatly from [ ] abusive and

23 negligent treatment” at the hands of Crotched Mountain staff,

including “excessive use of chemical restraints” in the form of

anti-psychotic drugs. They further allege that, “for

substantially the entire period” of Eleonora’s time at Crotched

Mountain, she was not “allowed to have any contact” with Katz or

Stuart Grodman, and was allowed visitation with Arnold Grodman

only “at most once per week . . . supervised with several

attendants typically present to observe and intervene.”

5. Guardianship proceedings

a. Prior to the Crotched Mountain placement

The plaintiffs allege that, on December 3 , 2007, McVeigh

“requested that [Katz] execute medical releases and other forms

consenting to [Eleonora’s] placement at Crotched Mountain and

waiving the Grodman family’s right to privacy.” This was just

after the Superior Court had issued the dispositional order

which, among other things, gave DCYF “direct access to all of

Eleonora’s medical, educational, psychological and behavioral

providers, including access to all [their] records” and ordered

the plaintiffs to “sign all necessary releases.” See Part

II.A.2.b, supra. Katz nevertheless refused to sign the

documents. “Because [she] refused to sign away her family’s

rights,” the plaintiffs allege, “DCYF had to file for

guardianship of [Eleonora] in order to effectuate the educational

24 placement at” Crotched Mountain. DCYF proceeded to file an ex

parte petition for guardianship over Eleonora which, the

plaintiffs allege, “was granted, without any hearing [or]

notice,” but “dismissed in March 2008 for lack of service.”

The plaintiffs further allege that DCYF filed another ex

parte guardianship petition on June 4 , 2008, which was granted

that same day. The plaintiffs claim that, when he filed DCYF’s

ex parte petition for guardianship of Eleonora on June 4 , 2008,

defendant Didier Matel, a DCYF attorney, “knew, or should have

known, [it] omitted material facts.” The petition “was sworn to

under oath” by defendant Kathleen Grondine, whom the amended

complaint identifies as McVeigh’s supervisor at DCYF.

The plaintiffs claim that, between the dismissal of DCYF’s

initial guardianship petition in March 2008 and the grant of its

subsequent one in June 2008, “all contact between DCYF agents and

[Eleonora’s] health care providers was inappropriate and

interfered with [her] receipt of proper health care,” as well as

the plaintiffs’ “constitutional right to privacy” and unspecified

“federal statutory rights.” The plaintiffs also claim that it

was “illegal and unconstitutional” for “DCYF, Rockingham County

Sheriff’s Office, Danville Police and all other law enforcement

agencies” to exchange “confidential medical information” with a

Massachusetts clinic that had recently treated Eleonora.

25 The only alleged “contact” between any of the defendants and

any of Eleonora’s medical providers during the period between the

DCYF guardianships, however, is a June 3 , 2008 telephone call

between Nye and an attorney for the clinic. The plaintiffs

allege that, when the attorney returned a call from Nye, the

attorney asked Nye for “current updated custody orders” for use

in showing cause, in a Massachusetts court, why the clinic had

refused to turn over records to Katz. The plaintiffs do not

allege that any “confidential medical information” was exchanged

during these calls.

b. After the Crotched Mountain placement: Family Division

The plaintiffs allege that, in September 2008, DCYF

voluntarily dismissed its then-pending petition for guardianship

over Eleonora, repositing guardianship in the plaintiffs. The

plaintiffs claim that Crotched Mountain remained unaware of this

development for a period of time, during which it “provided

[Eleonora] with medications she was not approved by her guardian

to receive.” The day after DCYF’s guardianship had terminated,

however, Grodman himself had provided DCYF with written

authorization to allow Eleonora to receive “any and all medical

care and/or psychological care required.”

The plaintiffs further allege that, in December 2008,

Grodman was asked to approve “some additional changes to one of

26 [Eleonora’s] medication dosages.” He responded, the plaintiffs

say, with “entirely reasonable” requests for “additional

information [on] why [Eleonora’s] medication needed to be

changed”--but DCYF and Crotched Mountain “refused to provide

[him] with the information he requested.” After several weeks of

“back and forth” with defendant Svreenivas Kattragadda, the

doctor “with primary responsibility for [Eleonora’s] mental

health” while she was at Crotched Mountain, its staff “began to

threaten” Grodman that they would ask DCYF to seek to resume its

guardianship over Eleonora “so that [she] could be given the

increased dosages of medication.” Grodman, the plaintiffs

allege, “refused to be intimidated” and, on March 2 3 , 2009,

revoked the medical authorization he had given DCYF.

In response, on April 3 , 2009, DCYF filed an ex parte

petition with the then-Brentwood Family Division seeking

guardianship over the person of Eleonora. The petition alleged

that, despite the Superior Court’s dispositional order (which

commanded that DCYF “have direct access to all of Eleonora’s

medical, educational, psychological and behavioral providers and

that the plaintiffs “sign all necessary releases”), Grodman had

refused to authorize any changes to Eleonora’s medication and,

indeed, had purported to revoke authorizations he had previously

given. The petition claimed that, as a result, Crotched Mountain

27 staff was “unable to change or administer any further medications

to Eleonora,” who was “decompensating.” Acting on the petition,

the Family Division granted DCYF temporary guardianship over

Eleonora for 30 days.

The plaintiffs allege that this petition, “acknowledged

under oath by defendant Karen Weinberg,” a DYCF supervisor,

“contained many false statements which [she] knew, or should have

known, would mislead the court as to the true circumstances” of

Eleonora’s treatment at Crotched Mountain. On April 1 4 , 2009, in

fact, the plaintiffs filed a motion to terminate DCYF’s

guardianship over Eleonora, alleging that DCYF “committed fraud

on the court” through its April 3 petition, and filed their own

petition for guardianship.

But after a hearing, at which the plaintiffs both appeared,

the Family Division denied the plaintiffs’ petition for

guardianship and granted guardianship over Eleonora to DCYF until

her eighteenth birthday. In re Grodman, N o . 2009-G-25 (N.H. Fam.

Div. Apr. 3 0 , 2009). The Family Division ruled that

DCYF has established clearly and convincingly that the best interest of Eleonora requires the substitution of parental care for [her] specifically to provide essential physical and safety needs. The sharp and significant decline in Eleonora’s condition . . . combined with the parent’s refusal to allow Crotched Mountain to administer any medical or mental health treatment requires appointment of a guardian to allow Crotched Mountain to treat Eleonora.

28 Id. at 2 .

A few weeks later, on May 1 8 , 2009, DCYF filed a petition

with the Family Division requesting that it extend its

jurisdiction over Eleonora beyond her eighteenth birthday.8 The

petition does not ask for ex parte relief and, indeed, states

that it was served on both of the plaintiffs. They nevertheless

allege that the petition was filed ex parte, on May 2 9 , 2009.

In any event, the Family Division held a hearing on the

petition on or about May 2 9 , 2009, which the plaintiffs did not

attend. After the hearing, at which Roy (who had previously

served as Eleonora’s guardian ad litem in the neglect proceedings

in the Family Court, see Part II.A.2.a.i, supra) was once again

appointed to serve as Eleonora’s guardian ad litem, the Family

Division granted DCYF’s petition “on a temporary basis until June

2 3 , 2009.” In re Grodman, N o . 2009-G-25 (N.H. Fam. Div. May 2 9 ,

2009). The court found that doing so was in Eleonora’s best

interest because, among other things, she was “still not

8 Under New Hampshire law, a guardianship over a minor terminates upon his or her eighteenth birthday,

, I , but a court can retain jurisdiction over the minor beyond that date “with the continuing consent of the minor” and if certain other conditions are satisfied, including that DCYF “has previously been appointed guardian,”

§ 463:15, I I .

29 stabilized and it will be at least a number of months before she can regain her stability.”9 Id.

The Family Division later held another hearing on the

petition to extend jurisdiction, which both plaintiffs attended.

The Family Division ruled that “the requirements for this Court

to retain jurisdiction [over Eleonora] after her [eighteenth]

birthday have been established by the evidence presented by the

hearing . . . . Accordingly, the guardianship previously granted

to DCYF is issued as a permanent guardianship.” In re Grodman,

N o . 2009-G-25 (N.H. Fam. Div. Mar. 1 6 , 2010). Under New

Hampshire law, this guardianship terminated when Eleonora turned

21. See

, III(1)(c).

c. After the Crotched Mountain placement: Probate Court

The Probate Division subsequently appointed Grodman as

guardian over Eleonora’s person. In re Grodman, N o . 2009-GI-1289

(N.H. Cir. C t . Prob. Div. July 7 , 2011). The court found that

Eleonora was incapacitated and, as such, incapable of managing

9 The same day this order issued, the plaintiffs filed a notice of appeal purporting to appeal i t , and the Family Division’s prior order granting DCYF guardianship over Eleonora until she turned eighteen, to the New Hampshire Supreme Court. This appeal was later dismissed, however, after the plaintiffs failed to deposit payment for transcripts as ordered. In re Eleonora G., N o . 2009-0395 (N.H. Sept. 1 0 , 2009). The plaintiffs nevertheless allege that they had no notice of the May 2009 guardianship order until after their time to appeal expired.

30 her own affairs.

The court also found that Grodman was “a

capable and appropriate person to appoint . . . , well able to

understand, choose, and direct resources available to the ward to

meet her needs.”

This appointment gave Grodman, among other

powers, “[t]he right and authority to determine if refusal should

be made or consent should be given to any medical or other

professional care, counseling, treatment, or service.”

Grodman promptly exercised this authority to remove Eleonora from

Crotched Mountain.

B. Procedural history

1. Plaintiffs’ initial complaint and amendments

On September 1 7 , 2010, the plaintiffs commenced this action

by filing a complaint in this court naming Katz, Grodman, and

Eleonora as plaintiffs and McVeigh, Matel, Weinberg, Parsons,

Katragadda, and a “Dr. Carl Cooley” as defendants. The

complaint, which contained seven separately numbered counts,

stated that it had been prepared by an attorney, Louis A .

Piccone, who was “pending admission pro hac vice.” In November

2010, a member of the bar of this court, Francis J. McDonough,

filed a motion to admit Piccone pro hace vice, which was granted.

In early 2011, the defendants named in the original

complaint began appearing, some answering and others filing

31 motions to dismiss. On March 3 , 2011, the plaintiffs moved for

leave to file an amended complaint, see Fed. R. Civ. P. 15(a)(2),

which named an additional plaintiff, Stuart Grodman, as well as a

number of additional defendants (though dropping Cooley). This

pleading contained 25 separately numbered counts. Many of the

defendants named in the first complaint filed objections to this

motion to amend. Ultimately, however, the motion was deemed

withdrawn when the plaintiffs failed to file a certificate of

service to the motion as ordered. Order of Mar. 2 2 , 2011.

The plaintiffs then filed another motion for leave to file

an amended complaint which contained 32 separately numbered

counts, but no longer named Eleonora as a plaintiff. Several

defendants objected to the motion for leave to file this proposed

amended complaint, and another simply moved to dismiss i t . This

court granted the motion to amend “without prejudice to the

futility arguments raised in the defendants’ objections” and

denied the motions to dismiss, similarly “without prejudice to

raising those arguments, and any additional ones, in refiled

motions to dismiss directed at the amended complaint.” Order of

Apr. 1 4 , 2011.

It is this version of the complaint that is subject to the

defendants’ pending motions to dismiss or for judgment on the

pleadings. Aside from a request for declaratory relief that

32 Matel’s “actions seeking and obtaining custody of [Eleonora]

after she reached the age of majority were unethical and that any

further involvement by [Matel] with [the plaintiffs or Eleonora]

would constitute unethical behavior by an attorney,” the amended

complaint seeks only damages.

2. Appointment of “next friend” for Eleonora

In June 2011, the plaintiffs filed yet another motion to

amend their complaint, this time so that they could reintroduce

claims on behalf of Eleonora, as her “next friends.” See Fed. R.

Civ. P. 17(c)(2). The court scheduled an evidentiary hearing on

the plaintiffs’ request for this relief, noting that Grodman’s

then-recent appointment as guardian of Eleonora’s person, see

Part II.A.5.c, supra, did not authorize him to bring claims on

her behalf. Order of Aug. 2 , 2011, at 2 (citing

-A:25, I(a)-(h)). During off-the-record discussions

between the court and counsel prior to the hearing, however, the

parties agreed that, in lieu of considering the plaintiffs’

request for appointment as next friends, the court would contact

a local attorney about seeking appointment to that role.10 Order

of Sept. 9, 2011. That attorney, however, declined to seek

10 For this reason, at the hearing, the court denied the plaintiffs’ motion for their own appointment as Eleonora’s next friends, and to amend the complaint to assert claims on her behalf, as moot.

33 appointment as Eleonora’s next friend,

as did two other

attorneys the court subsequently contacted at the parties’ joint

suggestion. See Order of Oct. 2 8 , 2011.

Based on these developments, the court ordered that

“litigation of plaintiffs’ claims shall proceed,” and set a new

schedule for briefing on the motions to dismiss.

In

accordance with this schedule, the defendants filed their current

motions to dismiss or for judgment on the pleadings in December

2011, and the plaintiffs--through counsel--filed an omnibus

objection to those motions in January 2012.

The plaintiffs later notified this court that the Probate

Division had appointed Grodman as guardian of Eleonora’s estate,

see In re Grodman, N o . 2009-GI-1289 (Feb. 1 2 , 2012), which, under

New Hampshire law, authorizes him to bring claims on her behalf,

among other things,

-A:26, I .

3. Withdrawal of plaintiffs’ counsel

In the meantime, Piccone, then one of the plaintiffs’

attorneys of record in this matter, moved to withdraw, explaining

that his license to practice law in Pennsylvania (the sole

jurisdiction in which he is admitted) had been suspended. The

court granted the motion. Order of Sept. 1 9 , 2011. Roughly one

month later, Piccone notified the court that Pennsylvania had

reinstated his license. He subsequently sought admission pro hac

34 vice again, but the court refused to grant that relief, finding

that, based on his performance in this case and others, he had

“engaged in a pattern of behavior that has resulted in the

wasting of judicial resources . . . mak[ing] his admission pro

hac vice inappropriate.” Order of Apr. 2 0 , 2012 (quotation marks

omitted). Piccone filed a notice of appeal of this decision, but

it was dismissed for lack of prosecution after he failed to

respond to orders by the court of appeals. Piccone v . McVeigh,

N o . 12-1683 (1st Cir. Aug. 1 0 , 2012).

After this court denied the motion to re-admit Piccone pro

hac vice, McDonough, then the plaintiffs’ remaining counsel of

record in the case, moved to withdraw. In support of the motion,

McDonough stated that, as a solo practitioner, he lacked “the

resources or means to support a complex litigation such as this

matter,” and that his relationship with Katz had “broken down

completely,” with her questioning his “integrity and ethical

conduct” at several points. The court granted the plaintiffs

leave to file a pro se objection to McDonough’s motion to

withdraw, then conducted a hearing at which the plaintiffs,

Stuart Grodman, and McDonough appeared.

Based on the presentations at the hearing, the court granted

McDonough leave to withdraw on June 1 8 , 2012, and stayed the case

for 30 days to allow the plaintiffs to find new counsel. When

35 that deadline arrived, the plaintiffs asked for an additional 60

days to secure a new lawyer. The court granted that relief,

continuing the stay until September 1 8 , 2012. Order of Aug. 1 3 ,

2012. The court then denied the defendants’ pending motions to

dismiss or for judgment on the pleadings “without prejudice

pending the appearance of counsel on the plaintiffs’ behalf,

notice by the plaintiffs that they will appear pro s e , or October

1 2 , 2012, whichever is earliest.” Order of Sept. 1 3 , 2012.

Based on the filings of pro se appearances by each of the

plaintiffs, and Stuart Grodman, the court later lifted the stay.

Order of Oct. 3 , 2012. The defendants subsequently reinstated

their motions to dismiss and for judgment on the pleadings.

4. Plaintiffs’ fourth motion to amend

On December 4 , 2012, the plaintiffs, now proceeding pro s e ,

filed a motion to amend their complaint yet again. The proposed

amended complaint they seek to file differs from the amended

complaint accepted for filing in April 2011 (and which, again, is

the version of their complaint subject to the pending motions to

dismiss and for judgment on the pleadings) in that: (1) it names

Eleonora as a plaintiff, (2) it states that Grodman is “guardian

of both the person and the estate of Eleonora Grodman,” and that

he is bringing this action in his capacity as such, as well as on

his own behalf, and (3) it names Rockingham County itself as a

36 defendant. This proposed amended complaint also adds causes of

action against certain defendants for malicious prosecution,

abuse of process, and violation of Katz’s equal protection rights

under the Fifth Amendment, as well as a request for a permanent

injunction. (The plaintiffs had also previously filed another,

narrower, motion to amend, seeking to add Eleonora as a

plaintiff, Rockingham County as a defendant, and a single new

claim, for injunctive relief.)

III. Analysis

In moving to dismiss, or for judgment on the pleadings o n ,

the claims in the amended complaint, the defendants raise a host

of arguments. For the reasons discussed in detail below, many of

those arguments are correct, and necessitate dismissal of the

amended complaint in its entirety.

Before embarking on that discussion, however, it should be

noted that the organization of the amended complaint makes an

analysis of its sufficiency unnecessarily complicated. The

amended complaint consists of a section of factual allegations

spanning more than 300 numbered paragraphs, followed by, as noted

at the outset, 32 separately numbered counts. The allegations of

each count, however, consist largely if not entirely of

boilerplate asserting a violation of some broadly asserted right,

37 e.g., the “right to family association,” without referring to

which of the defendants’ alleged actions (which, again, are set

out in the more than 300 numbered paragraphs that make up the

body of complaint) constitute that violation. Nevertheless, the

court has endeavored, with limited assistance from the

plaintiffs’ objection to the motions, to identify what alleged

conduct, by what defendant or defendants, underlies each of the

32 claims asserted in the amended complaint.

A. Claims not properly before this court

1. Claims on Eleonora’s behalf

The amended complaint names Eleonora as a plaintiff but, by

the time it was filed, the Probate Division had deemed her

incompetent to manage her own affairs. See Part II.A.5.c, supra.

Accordingly, she could not have brought these claims on her own

behalf, but only through a representative or next friend. See

Fed. R. Civ. P. 17(c). Again, this court made significant

efforts toward finding a next friend to represent Eleonora’s

interests in this matter, but was unable to do s o . See Part

II.B.2.b, supra.

It is true that, in the interim, the Probate Division has

appointed Grodman as guardian of Eleonora’s estate, which, under

New Hampshire law, authorizes him “to prosecute or defend

38 actions, claims, or proceedings in any jurisdiction for the

protection of [her] estate’s assets.”

-A:26, I . But Grodman cannot bring claims here on

Eleonora’s behalf without retaining counsel to represent her.

“By law an individual may appear in federal courts only pro se or

through legal counsel,” and not through “third-party lay

representation.” Herrera-Venegas v . Sanchez-Rivera,

1 ,

42 (1st Cir. 1982); see also L.R. 83.6(b). So Grodman, a non-

lawyer, cannot represent Eleonora in this action. See O’Diah v .

Volkswagen of Am., Inc.,

(1st Cir. 2004)

(observing that a father would need to be represented by counsel

to assert claims on behalf of his incompetent s o n ) .

Any claims in the amended complaint based solely on alleged

violations of Eleonora’s rights, then, must be dismissed without

prejudice. As best as the court can tell, these claims are:

•“false imprisonment of [Eleonora] Grodman” (count 1 3 ) ;

• “joint and several liability” for that false imprisonment (count 1 4 ) ;

• “illegal seizure” of Eleonora (count 2 1 ) ; and

• “negligence” against Roy, who allegedly “owed [Eleonora] Grodman a duty of care” (count 3 0 ) .

The plaintiffs’ objection to the motions to dismiss fails to

explain how they, as opposed to Eleonora, could bring a claim for

her alleged “false imprisonment” or “illegal seizure.” (To the

39 extent these claims seek to recover for her separation from them

or her placement at Crotched Mountain as a violation of the

plaintiffs’ constitutional right to family integrity, they are

addressed infra at Part III.C.1.a, insofar as they are not barred

by the Rooker-Feldman doctrine, see infra at Part III.B.2.)

Accordingly, counts 1 3 , 1 4 , 2 1 , and 30 are dismissed without

prejudice. The balance of the amended complaint is likewise

dismissed without prejudice insofar as it asserts any claims that

belong to Eleonora (this includes the Rehabilitation Act claim

insofar as it is brought on her behalf, see infra Part III.A.5).

2. Claims challenging state-court orders

While the plaintiffs insist otherwise in their objection to

the motions to dismiss, it is clear that significant portions of

their amended complaint challenge the Superior Court’s decision

awarding custody of Eleonora to DCYF, placing her at Crotched

Mountain, imposing restrictions on the plaintiffs’ visits with

her during the placement, and requiring them to sign various

releases for her care. See Part II.A.2.b, supra.

First, the plaintiffs complain that DCYF “was awarded

custody of [Eleonora] without an appropriate showing of abuse or

neglect and in violation of [the [plaintiffs’] constitutional

rights,” because “neither the [Superior] Court, nor DCYF, had

access to the information required to make such a finding.”

40 Second, the plaintiffs assert that, “[i]n violation of

constitutional norms,” the Superior Court granted DCYF’s proposed

dispositional order “without modification, and without setting

forth a required or detailed statement of [its] reasons.” Third,

the plaintiffs claim that ordering them to sign releases for

Eleonora’s care violated their “constitutionally protected rights

to privacy; to associate with family members; [and] to determine

the course of [her] medical treatment” (numbering omitted).

Fourth, the plaintiffs complain that the dispositional order

“prevented any contact between [Eleonora] and her mother” as well

between Eleonora and Stuart Grodman.11 Fifth, the plaintiffs

charge that, upon Grodman’s arrest in July 2008, Eleonora “was

taken into state custody without constitutional authority and in

violation of her and her parents’ constitutional rights”--and, of

course, it was the dispositional order that awarded custody of

Eleonora to DCYF and directed her placement at Crotched Mountain.

This court lacks jurisdiction to hear these claims under the

Rooker-Feldman doctrine. See Rooker v . Fidelity Trust Co., 263

11 In fact, the dispositional order allowed both plaintiffs to visit Eleonora during her placement at Crotched Mountain (though it required those visits to take place off-campus and placed other restrictions on them), and said nothing one way or the other about visits by Stuart Grodman. Part II.A.2.b, supra Even if the plaintiffs’ characterization of the visitation provisions were correct, however, that would not change the outcome of the Rooker-Feldman analysis. See infra this Part.

(1923); D.C. C t . of Appeals v . Feldman,

(1983). The doctrine protects the Supreme Court’s exclusive

jurisdiction to review state court decisions for constitutional

error by depriving the federal district courts of 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.” ExxonMobil Corp. v . Saudi

Basic Indus. Corp.,

8 0 , 284 (2005). The plaintiffs’

claims that the Superior Court’s dispositional order violates

their constitutional rights in various respects clearly fit that

description. Indeed, the court of appeals has held that the

Rooker-Feldman doctrine prevents a parent who loses custodial

rights as the final outcome of a state-court proceeding from

challenging that outcome as a violation of “his federal

substantive due-process rights as a parent.” Miller v . Nichols,

3 , 59 n.2 (1st Cir. 2009) (discussing Hoblock v . Albany

Cty. Bd. of Elections,

7 , 97 (2d Cir. 2005)). As

plainly shown by the preceding allegations of their amended

complaint, that is precisely what the plaintiffs are trying to do

here--at least in part.

But the plaintiffs are also seeking relief for allegedly

unconstitutional conduct by defendants in initiating and

42 prosecuting the neglect proceedings, as well as the guardianship

proceedings. As this court has observed, “those kinds of claims

do not implicate the Rooker-Feldman doctrine because they do not

require this court to conduct de facto appellate review of the

[state courts’] decisions, but to assess the legality of the

defendants’ actions.” Hall v . Brooks,

, 11-2 (citing

cases from various courts of appeals), aff’d, N o . 09-1594 (1st

Cir. Apr. 9, 2010) (unpublished disposition); see also, e.g.,

Kovacic v . Cuyahoga Cty. Dep’t of Children & Fam. Servs.,

0 1 , 310 (6th Cir. 2010) (ruling that Rooker-Feldman did not

bar claims that did “not seek review or reversal of the decision

of the [state] court to award temporary custody to the state, but

instead focus on the conduct of [the state child welfare agency]

and of the social workers that led up to [that] decision”).

The Rooker-Feldman doctrine, then, has no effect on the

court’s jurisdiction over the plaintiffs’ claims that, e.g., one

or more of the defendants commenced the neglect proceedings in

retaliation for the plaintiffs’ exercise of their First Amendment

rights, or provided false or misleading information to the Family

Division during the guardianship proceedings (though, as

discussed infra, those claims fail for other reasons). But the

doctrine does deprive this court of jurisdiction over the

plaintiffs’ claims, just catalogued, that the outcomes of those

43 proceedings--including, most significantly, the dispositional

order--violated their constitutional rights.12 The amended

complaint is dismissed insofar as it asserts such claims.

3. Claim for a declaratory judgment

As count 32 of the amended complaint, the plaintiffs pursue

“a judicial declaration” that Matel’s “actions in seeking and

obtaining custody of [Eleonora] after she attained the age of

majority were unethical and that any further involvement by [him]

with [plaintiffs] would constitute unethical behavior by an

attorney.” This court lacks jurisdiction to hear this claim.

“Article III of the Constitution restricts federal courts to

the resolution of actual cases and controversies,” and thus

“ensures that courts do not render advisory opinions.” Overseas

Mil. Sales Corp. v . Giralt-Armada,

2 , 16-17 (1st Cir.

2007) (citing U.S. Const. art. I I I , § 2 , c l . 1 ) . Generally,

12 While the plaintiffs say that the hearing officer’s order directing Eleonora’s placement at the Brattleboro Retreat or a similar facility was “illegal,” see Part II.A.1.b, supra, they do not specify the nature of that “illegality.” The IDEA gives this court jurisdiction to review such decisions,

(i)(1)(2)(A), but the plaintiffs have already tried to seek review of the hearing officer’s decision by filing an action in this court, which Magistrate Judge Muirhead dismissed because the plaintiffs failed to exhaust their administrative remedies. See note 6, supra. The plaintiffs do not allege that they have since done so and, in any event, any challenge to the hearing officer’s decision, rendered in February 2006, would be barred by the IDEA’s statute of limitations,

(i)(1)(2)(B).

44 “issuance of a declaratory judgment deeming past conduct illegal

is . . . not permissible as it would be merely advisory.” Am.

Civil Liberties Union of Mass. v . United States Conference of

Catholic Bishops, ___ F.3d ___,

(1st Cir.

Jan. 1 5 , 2013). The plaintiffs do not explain how a declaration

that Matel committed “unethical acts” in seeking custody of

Eleonora after she turned 18 (a course of conduct that ended in

March 2010, when the Family Court awarded DCYF custody of

Eleonora until her 21st birthday, see Part II.A.5.c, supra) would

amount to anything more than an advisory opinion which, as just

explained, this court lacks the jurisdiction to grant.

This court also lacks jurisdiction to declare that Matel’s

“further involvement” with the plaintiffs would be “unethical.”

Not only have the plaintiffs failed to allege facts suggesting “a

likelihood of future unlawful conduct on the defendant’s part,”

Maine v . Dep’t of Labor,

, 238 (1st Cir. 1985), this

claim is also not ripe for adjudication, because its resolution

“involves uncertain and contingent events that may not occur as

anticipated or may not occur at all.” Ernst & Young v .

Depositors Econ. Protection Corp.,

3 0 , 536-37 (1st Cir.

1995) (internal quotation marks omitted). Clearly, this court

cannot decide the legality of Matel’s future conduct without any

basis for anticipating what that conduct might be (aside from his

45 “involvement” with the plaintiffs), to say nothing of whether it

will occur at all. The claim for a declaratory judgment against

Matel (count 32) is dismissed.

B. Claims not plausibly alleged

As noted at the outset, the plaintiffs’ two principal

theories are that all of the defendants engaged in the conduct

alleged in the amended complaint (1) in retaliation for the

plaintiffs’ exercise of their First Amendment rights “to legally

advocate for appropriate special education” for Eleonora and

(2) as part of a conspiracy to effect that retaliation, as well

as to (at least as to certain defendants) “increase the flow of

money into the state of New Hampshire,” allegedly by receiving

funds dependent on keeping Eleonora in state custody.

The amended complaint, however, fails to state a plausible

claim for either retaliation or conspiracy, because (among other

problems) its allegations in support of those theories consist

solely of “‘labels and conclusions’” and “‘naked assertions,’”

rather than the requisite “factual content that allows the court

to draw the reasonable inference that the defendant[s] [are]

liable for the misconduct alleged.” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 555-57) (bracketing omitted). The

amended complaint also fails to state constitutional claims for

46 violations of the plaintiffs’ rights to privacy or “excessive use

of chemical restraints,” for retaliation under the Rehabilitation

Act, or for municipal or supervisory liability.

1. Section 1983 claims against DCYF

As an initial matter, the amended complaint improperly

asserts a number of § 1983 claims against DCYF. The plaintiffs

cannot bring any claim against DCYF under § 1983 because, as a

state agency, it is not a “person” subject to liability under

that statute. See, e.g., Brown v . Newberger,

9 , 92

(1st Cir. 2002) (dismissing § 1983 claims against state child

welfare agency). Accordingly, all of the § 1983 claims against

DCYF are dismissed, and will not be discussed further.

2. Retaliation

a. Defendants other than Lovett and Timberlane

As count 18 of their amended complaint, the plaintiffs claim

that “all defendants maliciously and with intent to injure, or

recklessly and with callous indifference, interfered with

plaintiffs’ . . . rights to exercise free speech by retaliating

against the plaintiffs . . . for demonstrating against the

negligent education of their daughter” (emphasis added). While

the allegations of this count contain no further elaboration, it

appears to refer to the “public demonstration protesting

[Timberlane’s] policies” that the plaintiffs say they organized

47 in April 2004. See Part II.A.1.a, supra. The amended complaint

also refers to other “advocacy” the plaintiffs undertook in

service of Eleonora’s “appropriate special education,” viz.,

Katz’s complaints “to various state agencies that oversee the

conduct of [ ] Timberlane and its employees,” including Lovett.

“In order to succeed on a First Amendment retaliation claim,

a party must show that her conduct was constitutionally

protected, and that this conduct was a substantial factor or a

motivating factor driving the allegedly retaliatory” conduct.

Gorelik v . Costin,

1 8 , 123 (1st Cir. 2011) (quotation

marks, ellipse, and bracketing omitted). The allegations just

described fail to plausibly show how the plaintiffs’ assertedly

protected conduct--complaining about Timberlane’s treatment of

their daughter in 2004--could have provoked retaliatory conduct,

in 2006 and later, on the part of the vast majority of the two

dozen defendants named here.

Indeed, the amended complaint provides no reasonable basis

to infer that many of the defendants (e.g., the various law

enforcement officers who, so far as the amended complaint

reveals, had no involvement with any of the plaintiffs until

2008) even knew, at the time they took those complained-of

actions, about the plaintiffs’ protests against Timberlane in

2004. Even as to those defendants who could have plausibly known

48 of those protests in advance of their challenged conduct (e.g.,

DCYF personnel), the amended complaint provides no reasonable

basis to infer that those defendants would have been interested

in those protests so as to use them as a substantial reason to

take action against the plaintiffs. In fact, the amended

complaint does not so much as hint at any reason to believe that

the plaintiffs’ protests, as “poisonous” as they may have been to

their relationship with Timberlane, would have mattered in the

least to any of the other defendants--let alone mattered to the

extent that the defendants would take them as a substantial cause

for retaliation against the plaintiffs.13

So the plaintiffs have pled “nothing that would ground a

reasonable inference that [the other defendants] would be moved

to retaliate on [Timberlane’s] behalf.” Bennett v . S t . Gobain

Corp.,

3 , 32 (1st Cir. 2007) (relying on this omission

in granting summary judgment against retaliation claim). This

deficiency is exacerbated by the substantial passage of time

between the protected activity identified in the amended

complaint (again, demonstrations and complaints that occurred in

13 To the contrary, the amended complaint alleges that, prior to the filing of the neglect petitions in April 2006, Lovett made three complaints of neglect to DCYF--all of which it investigated and determined were unfounded. See Part II.A.1.a, supra. Clearing the plaintiffs of neglect allegations hardly seems to fit the profile of an agency bent on retaliating against them.

49 and around April 2004) and the non-Timberlane defendants’

challenged activity--which did not even begin until DCYF

commenced the neglect proceedings some two years later. A gap of

this length “is sufficiently large so that . . . it will not

support an inferred notion of causal connection.” Id.; see also,

e.g., Gonzalez-Droz v . Gonzalez-Colon,

, 17 (1st Cir.

2011) (“In order to raise an inference of causation, temporal

proximity must be close.”). The amended complaint thus fails to

state a plausible retaliation claim against the defendants (other

than, arguably, Lovett and Timberlane) because it alleges no

facts giving rise to a plausible inference of retaliatory motive.

b. Lovett and Timberlane

Assuming, for the sake of argument, that the plaintiffs

plausibly allege retaliatory motive on the part of Lovett and

Timberlane (who, unlike the rest of the defendants, were the

targets of the plaintiffs’ protests and the other protected

activity they identify), the amended complaint still fails to

state an actionable retaliation claim against either of them. To

prevail on that claim, the plaintiff must show not only that his

protected activity substantially caused the defendant’s

challenged conduct, but also that the defendant’s conduct would

have “‘deter[red] a similarly situated individual of ordinary

firmness from exercising his or her constitutional rights.’”

50 Starr v . Moore,

(D.N.H. 2012) (quoting

Dawes v . Walker,

, 493 (2d Cir. 2002)); accord Starr

v . Dube,

4 1 , 342-43 (1st Cir. 2009). To the

extent the amended complaint even arguably attributes such

conduct to Lovett and Timberlane, that conduct occurred outside

of the applicable limitations period.

The plaintiffs accuse Lovett of “making a steady stream of

provably false allegations” to DCYF. They also accuse Lovett and

Timberlane of seeking the due process hearing before the

Department of Education that resulted in Eleonora’s placement at

the Brattleboro Retreat, see Part II.A.1.b, supra, and of filing

a complaint for another due process hearing, in November 2006,

which the plaintiffs say was dismissed in March 2007. The

plaintiffs also claim that, in November 2006, Lovett and

Timberlane “improperly interposed themselves as parties” in the

then-pending neglect proceedings.

All of that conduct, however, occurred prior to the Superior

Court’s finding of neglect, entered on September 1 3 , 2007. See

Part II.A.2.a.ii, supra. That was itself more than three years

before the plaintiffs filed this action, on September 1 7 , 2010.

The statute of limitations on a § 1983 claim brought in New

Hampshire is the three years dictated by N.H. Rev. Stat. Ann.

51 § 508:4. See, e.g., Harrington v . City of Nashua,

4 ,

28 (1st Cir. 2010). So the plaintiffs’ retaliation claim against

Lovett and Timberlane, which arises out of their conduct prior to

September 1 7 , 2007, is barred by the statute of limitations, as

Lovett and Timberlane argue in their motion to dismiss.

The plaintiffs respond that these defendants’ actions before

that day were part of a “continuing course of conduct” that “has

not stopped until this day.” The continuing violation doctrine,

however, does not allow a plaintiff to recover for discrete acts

of retaliation that occur outside of the limitations period

simply because those acts are related to other acts of

retaliation that occurred within the limitations period. See,

e.g., Miller v . N.H. Dep’t of Corrs.,

8 , 22 (1st Cir.

2002) (discussing Nat’l R.R. Passenger Corp. v . Morgan,

(2002)). The plaintiffs do not question that each alleged

instance of retaliatory behavior on the part of Lovett or

Timberlane (e.g., making a complaint to DCYF or the Department of

Education) is a “discrete act” for purposes of this analysis.14

14 Instead, the plaintiffs argue that Timberlane’s acts, both within and without the limitations period, emanate from its “policy of taking disabled children into [its] school system to reap financial rewards while terrorizing the parents with DCYF actions.” Leaving aside the conclusory nature of this statement, it ascribes a financial--rather than a retaliatory--motive to Timberlane’s alleged “policy” of prompting DCYF investigations against parents. S o , while maintaining a retaliatory policy into

52 So their assertion that those defendants took additional acts of

retaliation within the limitations period does not remove the

time-bar from the alleged acts of retaliation outside of the

limitations period. See id.; see also Gorelik,

.

In any event, the amended complaint does not plausibly

allege any retaliatory acts by Lovett or Timberlane that occurred

within the limitations period. First, it alleges that “[a]s

recently as November 2010, [ ] Lovett was still showing up at

court hearings regarding [Eleonora] and conferring with” Roy (her

guardian at litem) and Matel (an attorney for DCYF). Assuming,

dubitante, that the plaintiffs have plausibly ascribed a

retaliatory motive to this conduct, it would not, as a matter of

law, have “deter[red] a similarly situated individual of ordinary

firmness from exercising his or her constitutional rights” and

therefore cannot serve as the basis of a retaliation claim.

Starr,

.

Second, the plaintiffs allege that, on September 17 and

September 2 4 , 2007 (i.e., just within the limitations period) a

Timberlane attorney communicated with McVeigh, at DCYF, about

placing “conditions” on the plaintiffs’ visitation with Eleonora

the limitations period can subject a defendant to liability for applications of that policy occurring outside the limitations period, see Muniz-Cabrero v . Ruiz,

0 7 , 611 (1st Cir. 1994), the plaintiffs have not alleged any such policy here.

53 during her time at Crotched Mountain. According to the amended

complaint, however, the “conditions” discussed in these

communications were simply that the plaintiffs would “not be

permitted to interfere with the delivery of services” by Crotched

Mountain. There is no plausible way to infer that the

plaintiffs’ protests against Timberlane in April 2004 were “a

substantial” or “motivating” factor driving Timberlane’s asking

DCYF, in September 2007, to place these facially legitimate

“conditions” on the plaintiffs’ visits to Eleonora. See Air

Sunshine, Inc. v . Carl,

7 , 35-36 (1st Cir. 2011).

Indeed, the amended complaint itself alleges that one of

Timberlane’s communications on this score simply passed along a

request from Shumway, Crotched Mountain’s CEO, who (like the rest

of the defendants aside from Lovett and Timberlane) has been

ascribed no reason to know or care about, let alone retaliate

for, the plaintiffs’ protests against Timberlane in April 2004.

See Part III.B.1.a, supra. Because the plaintiffs have plausibly

alleged no retailiatory acts by Lovett or Timberlane within the

limitations period, the retaliation claim against them must be

dismissed. See Perez-Sanchez v . Public Bldg. Auth.,

(1st Cir. 2008).

54 3. Conspiracy

“A civil rights conspiracy as commonly defined is a

combination of two or more persons acting in concert to commit an

unlawful act, or to commit a lawful act by unlawful means, the

principal element of which is an agreement between the parties to

inflict a wrong against or injury upon another.” Earle v .

Benoit,

(1st Cir. 1988). The Supreme Court

held in Twombly that pleading a conspiracy claim under federal

law “requires a complaint with enough factual matter (taken as

true) to suggest that an agreement was made,” explaining that

neither “[a]n allegation of parallel conduct and a bare assertion

of conspiracy” nor a “conclusory allegation of agreement at some

unidentified point” will suffice. 550 U.S. at 556-57. The

plaintiffs have offered no more than that to support the several

different conspiracies they claim in their amended complaint.

The plaintiffs assert, in count 1 9 , that all 24 of the

defendants conspired “to violate rights and protections under

et seq., amendments I , IV, V , and XIV of the United

States Constitution and applicable New Hampshire law.” They go

on to say, in the same count, that certain of the defendants

(Timberlane, DCYF, the Town of Danville, Rockingham County,

Crotched Mountain, and Roy) “conspired to remove [Eleonora] from

her parents, maintain custody of [her] at [Crotched Mountain],

55 and discredit [the plaintiffs] in retaliation for [their]

assertion of their constitutional rights.”

It is difficult to conceive of a conspiracy claim more

devoid of the requisite supporting “factual matter to suggest

that an agreement was made.” Twombly, 550 U.S. at 556. While

the plaintiffs, in their objection to the motions to dismiss,

cite several paragraphs of their amended complaint to try to show

that it is “replete with excerpts from e-mails, court filings,

and other documents that show an on-going correspondence and

explicit agreement between the defendants,” the vast majority of

those paragraphs merely assert the existence of a conspiracy in

terms no less conclusory than those in the counts themselves.

Indeed, none of those paragraphs even alleges any “express

agreement,” and the only ones referring to any correspondence

among any of the defendants describe the communications among

Timberlane’s attorney, McVeigh, and Shumway about asking the

Superior Court to impose conditions on the plaintiffs’ visits to

Eleonora. See Part III.B.2.b, supra. Needless to say,

communications among three of the defendants about that limited

subject do not furnish a plausible basis to find an agreement

56 between them and the numerous other defendants accused of joining

the conspiracy claimed in count 19. 15

Furthermore, while the aim of the conspiracy charged in

count 19 is retaliation against the plaintiffs, they have

provided no reason to infer that (aside from Lovett and

Timberlane) any of the alleged conspirators held any retaliatory

animus, as already discussed at length. See Part III.B.2.a,

supra. The plaintiffs argue in their objection to the motions to

dismiss that this conspiracy had another goal, i.e., “taking

disabled children into state custody to reap the windfall of

federal dollars that these children bring into state coffers.”

But, putting aside the fact that this is not the theory pled in

count 1 9 , the amended complaint likewise offers no factual

support for the notion that many of the alleged conspirators,

particularly county and local law enforcement officers, stood to

benefit in any way from whatever monies the state received on

account of Eleonora’s custody. Thus, while the plaintiffs are

15 The plaintiffs also argue that DCYF employees “communicated with the law enforcement officers egging them on to unconstitutional behavior like warrantless entry,” pointing to the amended complaint’s allegations that McVeigh “organized and then participated in” the search of Stuart’s Grodman’s apartment with the defendant Boston Police Officers. Whether or not the warrantless entry into Stuart Grodman’s apartment was the product of a “conspiracy,” any claim for it is barred by the statute of limitations. See infra Part III.D.1.c.

57 correct that they could state a plausible conspiracy claim by

alleging “‘a basis for inferring a tacit agreement,’” Twombly,

550 U.S. at 557 (quoting DM Research, Inc. v . Coll. of Am.

Pathologists,

3 , 56 (1st Cir. 1999)), they have not

done that as to the conspiracy claimed in count 1 9 .

Count 20 charges a conspiracy between certain DCYF

personnel, on the one hand, and Katragadda and Crotched Mountain,

on the other, “to increase the flow of money into the state of

New Hampshire and to negatively influence the familial and

parental relationships of the plaintiffs,” presumably by seeking

to place Eleonora at Crotched Mountain. The amended complaint,

however, does not allege that Katragadda or anyone else

affiliated with Crotched Mountain even had any involvement in

DCYF’s decision to seek her placement there. Without “alleged

concerted action,” of course, there can be no conspiracy claim.

Slotnick v . Staviskey,

1 , 33 (1st Cir. 1977).

Insofar as count 20 relies on Shumway’s asking DCYF to ask

the Superior Court to place “restrictions” on the plaintiffs’

visits to Eleonora during her time there, i.e., that they “not be

permitted to interfere with the delivery of services” by Crotched

Mountain, that theory also fails. The only conspiracies

actionable under § 1983 are conspiracies that deprive the

plaintiff of some federally protected right. See Thore v . Howe,

58

(1st Cir. 2006). Assuming that the plaintiffs

have plausibly alleged a conspiracy to secure a Superior Court

order restricting them from interfering with Crotched Mountain’s

delivery of services to Eleonora, and assuming further that such

a restriction would have deprived them of a constitutional right

(e.g., to decide what medical treatment their child should

receive, see infra Part III.A.1.b.i), the Superior Court’s order

did not in fact impose such a restriction.16 To the contrary, as

the plaintiffs themselves allege, they retained authority, in the

face of the Superior Court order, to make decisions about

Eleonora’s medical care; they did not lose that authority until

DCYF obtained guardianship over Eleonora, and they do not

plausibly allege that those guardianships resulted from any

conspiracy (nor did the DCYF employees who obtained those

guardianships on its behalf violate any of the plaintiffs’

clearly established constitutional rights in doing s o , see infra

Part III.C.2.b.i). The conspiracy claims are dismissed.

16 The same analysis applies insofar as the plaintiffs are claiming a conspiracy to ask the Superior Court to prevent Katz (or Stuart Grodman) from visiting Eleonora during her time at Crotched Mountain. The Superior Court’s order did not prevent either Katz or Stuart Grodman from visiting Eleonora. See Part II.A.2.b, supra.

59 4. “Chemical restraints”

In count 15 of the amended complaint, the plaintiffs allege

that a number of the defendants “interfered with plaintiffs’

right to have their daughter free from excessive use of chemical

restraints by overmedicating” her “without any right or authority

to do so,” in violation o f , among other constitutional

provisions, the Fourteenth Amendment. The defendants named in

this count are: the DYCF employees; Timberlane and Lovett;

Crotched Mountain, Shumway, and Katragadda; and Roy. Aside from

Crotched Mountain and Katragadda, however, the amended complaint

nowhere alleges that any of these defendants played any role in

“medicating” Eleonora, whether during or prior to her time at

Crotched Mountain.17

For their part, Crotched Mountain, Shumway, and Katragadda

are not state actors, but private citizens, and “[a]s a general

matter the protections of the Fourteenth Amendment do not extend

to private conduct abridging individual rights.” NCAA v .

Tarkanian,

(1988). The plaintiffs argue that

the Constitution nevertheless dictated the terms of Katragadda’s

17 Insofar as this claim is premised on DCYF’s seeking guardianship over Eleonora so it could authorize her treatment during its custody of her, it fails to state the violation of any clearly established constitutional right. See infra Part III.C.1.b.

60 treatment of Eleonora because he was “a willful participant in

joint action with the State or its agents,” Dennis v . Sparks,

4 , 27 (1980), in this case, DCYF. As just discussed,

however, the plaintiffs have not plausibly alleged the existence

of a conspiracy between DCYF employees, on one hand, and Crotched

Mountain and Katragadda, on the other.18 There is no allegation

that any of the DCYF defendants--or, for that matter, any of the

public actors named as defendants to this count--had any role in

deciding what medications Kattragada, or anyone else who treated

Eleonora at Crotched Mountain, should administer. Count 15 fails

to state a claim for relief.

5. Supervisory and municipal liability

a. Bishop

Counts 22 and 23 of the amended complaint seek to hold

Bishop, DCYF’s director, liable for the alleged violations of the

plaintiffs’ constitutional rights perpetrated by DCYF employees.

“Under

, a supervisory official may be held

liable for the behavior of his subordinates only if (1) the

18 This analysis is fatal to any constitutional claim arising out of Katz’s alleged deprivation from any contact with Eleonora during her time at Crotched Mountain. The Constitution did not demand that Crotched Mountain or Shumway, as private actors, allow any contact between Katz and Eleonora. Nor have the plaintiffs plausibly alleged that Crotched Mountain or Shumway disallowed such contact (as opposed to asking for restrictions on it) as part of a conspiracy.

61 behavior of his subordinates results in a constitutional

violation, and (2) the supervisor’s action or inaction was

affirmatively linked to that behavior in the sense that it could

be characterized as supervisory encouragement, condonation or

acquiescence or gross negligence amounting to deliberate

indifference.” Pineda v . Toomey,

0 , 54 (1st Cir. 2008)

(quotation marks and bracketing omitted).

Here, the only link the plaintiffs try to forge between

Bishop’s conduct and the allegedly unconstitutional behavior of

DCYF employees is a “pervasive failure by DCYF to train its

staff.” To prevail on a § 1983 claim premised on a failure to

train, however, a plaintiff must ordinarily show “[a] pattern of

similar constitutional violations by untrained employees” so as

to put a supervisor on “notice that a course of training is

deficient in a particular respect.” Connick v .

S .

C t . 1350, 1360 (2011). The plaintiffs have alleged no facts to

make out such a theory here and, indeed, they articulate their

failure-to-train theory in only the most conclusory terms (e.g.,

“[i]t was the policy and practice of the defendants, to fail to

properly supervise, train, and control the rank and file social

workers who deal with New Hampshire parents . . . so that many of

the rank and file routinely threaten, intimidate and coerce

parents during child abuse/neglect investigations”). These kinds

62 of allegations, “couched completely as legal conclusions, with

the defendant’s name merely plugged into the elements of [the]

claim” fail to state a claim for supervisory liability under

§ 1983. Soukup v . Garvin,

2 0 , 8 (citing Twombly, 550

U.S. at 5 5 5 ) . Counts 22 and 23 must be dismissed.

b. Town of Danville

Through count 24 of the amended complaint, the plaintiffs

attempt to hold the Town of Danville liable for the alleged

actions of Parsons, its chief, in procuring their arrests. To

support this theory, the plaintiffs allege that Parsons “was the

final policymaker for the Town of Danville with respect to its

police department,” including its decisions to seek the

plaintiffs’ arrests. “However, ‘the fact that a particular

official--even a policymaking official--has discretion in the

exercise of a particular function does not, without more, give

rise to municipal liability based on an exercise of that

discretion.’” Roma Constr. C o . v . aRusso,

(1st

Cir. 1996) (quoting Pembaur v . City of Cincinnati,

(1986) (bracketing omitted)). The plaintiffs have alleged

nothing more than that to support their claim against the Town of

Danville (they do not allege, for example, that Parsons exercised

his authority as chief to adopt a policy of seeking arrest

63 warrants without probable cause). So their claim against the

Town of Danville (count 24) must be dismissed.

6. Rehabilitation Act

As to count 25 of the amended complaint, the plaintiffs

claim that Timberlane, DCYF, and the DCYF employees named as

defendants violated § 504 of the Rehabilitation Act of 1973.

Pub. L . 93-112, tit. 5 , § 504 (codified as amended at

(a)). Under that provision, in relevant part, “[n]o otherwise

qualified individual in the United States . . . shall, solely by

reason of his or her disability, be excluded from participation

i n , be denied the benefits o f , or be subjected to discrimination

under any program or activity receiving federal financial

assistance.”

In support of their Rehabilitation Act claim, the plaintiffs

allege solely that Eleonora “was denied the benefits to which she

was entitled and discriminated against solely on the basis of her

disability by” Timberlane, DCYF, and the DCYF employees named as

defendants. But the plaintiffs cannot assert any Rehabilitation

Act claim on Eleonora’s behalf. See Part III.A.1, supra. The

plaintiffs argue that, as the parents of a disabled child, they

“also fall within the protections of the act.” While at least

one court has endorsed this view, see Doe v . County of Centre,

1 7 , 427 (M.D. P a . 1999), this court need not decide

64 whether to adopt it here, because the plaintiffs have not

plausibly alleged that they (as opposed to Eleonora) suffered

exclusion or discrimination from a covered program. Count 25 of

the amended complaint must be dismissed.

7. Violation of right to privacy

Counts 7 and 8 of the amended complaint charge that the DCYF

and Timberlane defendants violated the plaintiffs’ “rights to

privacy in their persons and their homes by illegally obtaining

highly confidential information from plaintiffs’ persons or

homes.” But the amended complaint alleges no facts whatsoever to

support this claim, and the plaintiffs do not explain in their

objection what they could possibly mean by i t . While the

plaintiffs complain about seizures of their persons during their

eventual arrests, they do not allege that anything, let alone

“highly confidential information,” was seized from their persons.

The plaintiffs also complain about certain defendants’ alleged

entry into Stuart Grodman’s apartment but, again, the plaintiffs

do not say that anything was seized during that entry (and

insofar as this claim is premised on that, it is barred by the

statute of limitations, see infra Part III.D.1.c). 19 Counts 7

19 The amended complaint contains a number of references to privacy rights in Eleonora’s medical records. Putting aside the fact that, so far as the amended complaint indicates, those records were never accessed by way of any “seizure,” any privacy

65 and 8 fail to state an intelligible claim for relief, let alone a

plausible one.

C. Claims barred by qualified immunity

The bulk of the plaintiffs’ remaining federal claims fall

into two categories: (1) claims arising out of their loss of

custody and guardianship over Eleonora and (2) claims arising out

of the plaintiffs’ arrest and incarceration. The defendants

argue that these claims, insofar as they make out any

constitutional violations in the first place, are barred by the

doctrine of qualified immunity. The court agrees.

“Qualified immunity shields . . . state officials from money

damages unless a plaintiff pleads facts showing (1) that the

official violated a constitutional or statutory right and

rights in those records belonged to Eleonora, not to the plaintiffs, so they cannot be asserted here. See Part III.A.1, supra. This applies to any claim that (a) unnamed Timberlane officials “spread rumors that [Eleonora] had an unspecified psychiatric problem” during her enrollment there (which is also barred by the statute of limitations, see Part III.B.2.b, supra,) (b) the Superior Court wrongfully ordered the plaintiffs to sign releases giving DCYF access to Eleonora’s medical providers (which is also barred by the Rooker-Feldman doctrine, see Part III.A.2), (c) Nye wrongfully had contact with one of those providers (and the amended complaint also does not allege that Nye accessed any of Eleonora’s confidential medical information during those communications, See Part II.A.5.a, supra).

66 (2) that the right was clearly established at the time of the

challenged conduct.” Ashcroft v . al-Kidd, 131 S . C t . 2074, 2080

(2011) (quotation marks omitted). For purposes of this second

showing, “[t]he relevant, dispositive inquiry . . . is whether it

would be clear to a reasonable [official] that his conduct was

unlawful in the situation he confronted.” Brosseau v . Haugen,

9 4 , 199 (2004). Thus, dismissing a claim based on

qualified immunity is appropriate when a court can conclude,

based solely on the materials cognizable on a Rule 12 motion, see

Part I , supra, that “an objective official in the [defendant’s]

position, as a matter of law, would have reasonably concluded”

that his complained-of actions did not violate the plaintiff’s

constitutional rights. Maldonado v . Fontanes,

(1st Cir. 2009). That conclusion is inescapable as to the

plaintiffs’ remaining constitutional claims.

1. Custody and guardianship proceedings

a. Neglect investigations and proceedings

In counts 1-4 of the amended complaint, the plaintiffs claim

that the DCYF defendants and the Timberlane defendants

“interfered” with the plaintiffs’ “rights to family association”

and “rights to the care, custody, and management of their

children.” As the plaintiffs point out, “the Due Process Clause

of the Fourteenth Amendment protects the fundamental right of

67 parents to make decisions concerning the care, custody, and

control of their children.”20 Troxel v . Granville,

7 ,

66 (2000). The United States Supreme Court, “however, has never

recognized the right to familial integrity as absolute or

unqualified,” and has acknowledged that “the government itself

has a compelling interest in the health, education, and welfare

of children as future citizens.” Frazier v . Bailey,

(1st Cir. 1992) (footnote omitted).

It follows, as the Supreme Court has held, that a state may

seek “to protect minor children through a judicial determination

of their interests in a neglect proceeding.” Stanley v .

Illinois,

(1972). Indeed, the Court has not

seen fit, as a matter of constitutional law, even to “question

the assertion that neglectful parents may be separated from their

children.”

. Generally, of course, “a deprivation of

a fundamental right such as the custody of one’s children must be

20 In addition to the Fourteenth Amendment, the amended complaint invokes the Fourth, Fifth, and Seventh Amendments as sources of their rights to family integrity. While, like the Fourteenth Amendment, the Fifth Amendment guarantees due process, proc it “applies only to actions of the federal government--not to those of state or local governments.” Martinez-Rivera v . Sanchez Ramos,

, 8 (1st Cir. 2007) (internal quotation marks omitted). So it has no application here. The plaintiffs’ objection does not even mention, let alone develop, their novel notion that the Fourth and Seventh Amendments afford them rights to family integrity, so the court will ignore i t .

68 preceded by notice and an opportunity to be heard.” Tower v .

Leslie-Brown,

9 0 , 298 (1st Cir. 2003).

The plaintiffs retained both physical and legal custody of

Eleonora until after the Superior Court found that they had

neglected her, see Part II.A.2.a.ii, supra, and, by way of the

dispositional order, awarded custody of Eleonora to DCYF and

ordered her placement at Crotched Mountain, see Part II.A.2.b,

supra. That did not happen, moreover, until the plaintiffs

received notice and the opportunity to be heard--not only at the

dispositional hearing, which they attended in person, but also at

the neglect hearing in the Family Court (Katz, but not Grodman,

was also afforded a de novo neglect hearing in the Superior

Court). See Part II.A.2, supra.

Given the well-established law, just discussed, that a state

can separate a child from her neglectful parents upon notice and

opportunity to be heard, no reasonable official would have

thought he or she was violating the plaintiffs’ constitutionally

protected rights to family association or child rearing simply by

participating in the neglect or dispositional proceedings that

brought about that result. Nor do the plaintiffs allege that any

of the defendants took any particular unconstitutional action

during the course of those proceedings. While, as already noted,

the plaintiffs complain that various aspects of the neglect

69 findings and dispositional orders themselves violated their

constitutional rights, the Rooker-Feldman doctrine prevents this

court from hearing that complaint. See Part III.A.2, supra.

The plaintiffs also claim “a right to be free of

unreasonable, repetitive and duplicative state investigations

into abuse and/or neglect.” The court takes this to refer to the

plaintiffs’ allegation that, prior to the neglect complaint that

ultimately led to their losing custody of Eleonora, DCYF

investigated three other complaints of neglect against them,

lodged by Lovett, and concluded that each was unfounded. See

Part II.A.1.a, supra. As the DCYF defendants point out, this

claim runs squarely into controlling law that “the state may

freely investigate allegations of child abuse,” Hatch v . Dep’t

for Children, Youth & Their Families,

2 , 20 (1st Cir.

2001), because “[t]he right to family integrity clearly does not

include a constitutional right to be free from child abuse

investigations,” Watterson v . Page,

, 8 (1st Cir.

1993). While, as one court has mused, this principle might yield

if “the investigation was undertaken in bad faith or with a

malicious motive or if tactics used to investigate would ‘shock

the conscience,’” Kottmyer v . Maas,

8 4 , 691 n.1 (6th

Cir. 2006), that theory would not help the plaintiffs here

because (1) they have not identified any conscience-shocking

70 tactics, nor have they plausibly attributed any bad faith or

malice to the investigations,21 see Part III.B.2.a, supra, and

(2) regardless, these investigations occurred wholly outside of

the limitations period, see Part III.B.2.b, supra.

b. Guardianship proceedings

i. Justification for proceedings

The plaintiffs also complain about “objectively baseless

guardianship proceedings,” presumably, DCYF’s series of petitions

for guardianship of Eleonora. See Part II.A.5, supra. The

plaintiffs do not identify, however, any clearly established

constitutional right by parents to be free from state efforts to

seek guardianship over their child, even if those efforts are

“baseless.” To the extent that those efforts were unsuccessful

(for example, the petition for guardianship that, the plaintiffs

allege, DCYF dismissed in September 2008), it would seem that

they did not affect any of the plaintiffs’ constitutionally

21 To the contrary, the plaintiffs themselves say that these earlier investigations cleared them of any wrongdoing--which makes it implausible to claim that the investigations were carried out maliciously or in bad faith (at least in the absence of some conscience-shocking investigatory tactics and, again, none have been alleged). See also note 1 3 , supra.

71 protected interests at all. The plaintiffs provide no authority

or developed argument to the contrary.22

To the extent that DCYF’s petitions for guardianship over

Eleonora’s person were granted, they gave DCYF, and removed from

the plaintiffs, “the powers and responsibilities of a parent

regarding [her] support, care and education,”

, I , including the power to “[g]ive any necessary

consent or approval to enable [her] to receive medical or other

professional care, counsel, treatment, or service,”

§ 463:12,

III(d). As just discussed, the Fourteenth Amendment protects

parents’ rights to make decisions about their childrens’ care,

but that right is qualified by the state’s interest in

safeguarding children’s health--a regime that, as the court of

appeals has observed, makes it “difficult, if not impossible, for

officials to know when they have violated clearly established

law.” Frazier,

(quotation marks omitted).

22 The same is true of the guardianship proceedings that DCYF commenced in late May 2009, to take effect after Eleonora turned 1 8 . See Part II.A.5.c, supra. The plaintiffs have identified, and the court is aware o f , no authority recognizing a parent’s constitutional right to make medical decisions for a child after he or she reaches adulthood, even if (as was the case here) the child is incapacitated from making those decisions on his or her own. So the plaintiffs cannot premise their substantive due process claims on the adult guardianship proceedings.

72 Even if the guardianships violated the plaintiffs’

constitutional right to decide matters of Eleonora’s care, then,

the defendants who participated in obtaining the guardianships

for DCYF are entitled to qualified immunity, because “the

contours of this right have yet to be clearly established.” Id.

Indeed, one federal court of appeals recently ruled that state

child welfare officials had qualified immunity from claims that,

by obtaining guardianship over a child in order to obtain medical

treatment for him, they had violated his parents’ due process

right to direct his care. PJ ex rel. Jensen v . Wagner,

(10th Cir. 2010). The court reasoned that, while

“precedent reasonably suggests that the Due Process Clause

provides some level of protection for parents’ decisions

regarding their child’s medical care,” there was no “clearly

established constitutional line that defines what a state can and

cannot do to protect a child whose life is compromised by his

parents’ refusal to obtain medical care.”

. That

observation is equally apt here.

For example, in granting DCYF’s petition for guardianship

over Eleonora until her eighteenth birthday, the Family Division

found (after a hearing attended by both of the plaintiffs) that,

beginning in February 2009, Eleonora had “developed symptoms of

paranoia, delusions, and self-harm” and that this “sharp and

73 significant decline in Eleonora’s condition . . . combined with

the parent’s refusal to allow Crotched Mountain to administer any

medical or health treatment requires appointment of a guardian.”

In re Grodman, N o . 2009-G-25, slip o p . at 2 . Based on these

facts--which the plaintiffs are collaterally estopped from

relitigating here, see Part I , supra--the DCYF defendants did not

violate the plaintiffs’ clearly established due process rights to

direct Eleonora’s medical care by bringing the guardianship

proceedings.23 See PJ,

.

ii. Defendants’ conduct during guardianship proceedings

Counts 5 and 6 of the amended complaint claim that the DCYF

defendants “interfered” with a variety of the plaintiffs’ other

constitutional rights--including under the Fourth Amendment--by

23 Similarly, the plaintiffs acknowledge in their amended complaint that, in April 2008, “DCYF had to file for guardianship” after Katz refused to comply with the provision of the dispositional order that she sign releases giving DCYF access to Eleonora’s medical providers. See Part II.A.5.a, supra. The dispositional order’s grant of legal custody to DCYF, in fact, gave it “[t]he responsibility to provide [her] with . . . ordinary medical care provided that such rights and responsibilities shall be exercised subject to the power, rights, duties and responsibilities of [her] guardian.”

-C:3, XVII(d). Under these circumstances, no reasonable official would have known he was violating the plaintiffs’ clearly established constitutional right to make medical decisions for Eleonora, as opposed to pursuing the state’s legitimate interest to ensure the health of its children, by seeking to reposit that decisionmaking authority in DCYF by way of the 2008 guardianship proceedings.

74 filing guardianship petitions which “either contained false

information, or omitted material exculpatory information.”24

Based on the Supreme Court’s decision in Franks v . Delaware,

(1978), the court of appeals has held that “[i]t has

long been clearly established that the Fourth Amendment’s warrant

requirement is violated when a false statement knowingly and

intentionally, or with reckless disregard for the truth, was

included by the affiant in a warrant application if the false

statement is necessary for a finding of probable cause.” Aponte

Matos v . Toledo Davila,

8 2 , 187 (1st Cir. 1998)

(quotation marks omitted). Thus, “[a]n officer who obtains a

warrant through material false statements which result in an

unconstitutional search may be held personally liable for his

actions under § 1983,” id. (footnote omitted), as may an officer

who knowingly withholds exculpatory evidence from another officer

preparing an affidavit for an arrest warrant, Burke v . Town of

Walpole,

6 , 87 (1st Cir. 2005).

24 While the plaintiffs baldly assert that the June 2008 and April 2009 guardianship petitions included false statements, the amended complaint does not identify any (save for a statement in the June 2008 petition that arrest warrants had issued for the plaintiffs, which was in fact true, see Part II.A.4.b, supra). Instead, the amended complaint alleges a number of facts that the petitions omitted and that, in the plaintiff’s view, were material to the guardianship question in a way helpful to them.

75 But the plaintiffs do not provide, and the court is not

aware o f , any authority applying these principles to a state

child welfare official who intentionally or recklessly omits

material facts from an affidavit in support of a guardianship

petition. This is unsurprising, because, as just noted, the rule

announced in Franks is based on the Warrant Clause of the Fourth

Amendment, see

, and a guardianship petition

does not itself result in the issuance of a warrant nor, for that

matter, any “search” or “seizure.” Indeed, “while the reach of

the Fourth Amendment has been extended to include various types

of governmental conduct outside the traditionally recognized area

of law enforcement, the [Supreme] Court has been careful to limit

this expansion to governmental conduct that can reasonably be

said to constitute a ‘search’ or a ‘seizure’ within the meaning

of the Fourth Amendment.” United States v . Attson,

(9th Cir. 1990). So the Fourth Amendment, and the

interpretation the Court gave it in Franks, simply have no

application to the guardianship proceedings at issue here.

This court’s research has uncovered one case holding that,

by deliberately including false statements in a declaration filed

to terminate a plaintiff’s guardianship over a minor child, a

state child welfare official violates the plaintiff’s substantive

due process rights. Costanich v . Dep’t of Soc. & Health Servs.,

76

, 1114 (9th Cir. 2010) (relying on Devereaux v .

Abbey,

(9th Cir. 2001)). Even assuming that this

is correct, however (which this court need not and does not

decide), it would not defeat the qualified immunity of the DCYF

officials who submitted the guardianship petitions at issue here.

First, a single judicial decision recognizing a

constitutional right does not “clearly establish” that right for

purposes of qualified immunity, unless, of course, that decision

is binding in the jurisdiction in question. See al-Kidd, 131 S .

C t . at 2083-84 (holding that, “absent controlling authority[,] a

robust consensus of cases of persuasive authority” is necessary

to overcome qualified immunity). Second, the Constanich court

held that the constitutional right it recognized, i.e., “not to

be accused based on deliberately falsified evidence during civil

investigations which could result in the deprivation of protected

liberty or property interests,” was not “clearly established” by

prior law.

. Constanich was decided in December

2010, after all of the complained-of conduct in this case

occurred. Thus, even assuming that the Constitution prevents

public officials from making deliberately false statements in

support of a guardianship proceeding, and assuming further that

the plaintiffs have plausibly alleged that one or more defendants

77 did so here, but see note 2 4 , supra, those defendants would still

be entitled to qualified immunity.

The plaintiffs also complain about the ex parte nature of

the guardianship petitions filed in April 2008 and April 2009.25

See Part II.A.5.a-b, supra. The court of appeals has held that

“the Constitution allows a case worker to take temporary custody

of a child, without a hearing, when the case worker has a

reasonable suspicion that child abuse has occurred (or,

alternatively that a threat of abuse is imminent).” Hatch,

(emphasis added). This rule also governs a “plausible

decision to remove a child” due to “neglect or an imminent

serious risk of . . . neglect.” Carter v . Lindgren,

6 ,

32 (1st Cir. 2007). It follows that the lesser ex parte

intrusion here--relieving the plaintiffs of their guardianship

rights over Eleonora, who was no longer in their custody at that

point--could not have violated their constitutional rights so

long as the defendants had a plausible reason for i t .

25 The plaintiffs allege that DCYF’s May 2009 petition, seeking guardianship over her after she turned 1 8 , was also filed ex parte. It was not. See Part II.A.5.b, supra. While the petition was granted ex parte, that cannot support any claim by the plaintiffs here because (1) any attack on the nature of the guardianship proceedings, as opposed to a defendant’s conduct during those proceedings, is barred by the Rooker-Feldman doctrine, see Part III.A.2, supra, and (2) the plaintiffs have not shown any constitutionally protected interest in Eleonora’s guardianship after she became an adult, see note 2 2 , supra.

78 They did, as the plaintiffs more or less concede as to the

April 2008 petition, see note 2 3 , supra, and as the Family

Division found after conducting the subsequent hearing, which the

plaintiffs attended, on the April 2009 petition, see Part

III.C.1.b.i, supra. The defendants who sought that ex parte

guardianship have qualified immunity from any constitutional

liability for doing s o .

2. Plaintiffs’ arrests and incarceration

a. Appropriate defendants

In counts 9-12 of the amended complaint, the plaintiffs

claim false arrest and false imprisonment in violation of their

federal constitutional rights by all of the DCYF defendants, all

of the Rockingham defendants, and Danville and Parsons.26 As an

initial matter (with two exceptions) the amended complaint does

not link any of the defendants to the plaintiffs’ arrests, which

occurred in Massachusetts and, presumably, were carried out by

law enforcement officers in that state. Indeed, the amended

26 These claims, like many of the plaintiffs’ other constitutional claims, invoke the Fourth, Fifth, and Fourteenth Amendments. As already noted, the Fifth Amendment has no application here, see note 2 0 , supra, and, absent “selective enforcement of the law based on considerations such as race” (which is one of the few things not claimed here) the Fourth Amendment, not the Fourteenth, governs the constitutional legitimacy of a seizure by law enforcement, Whren v . United States,

(1996).

79 complaint does not even identify, by name, agency, or otherwise,

the law enforcement officers who arrested either of the

plaintiffs. Nor (again, with two exceptions) does the amended

complaint allege that any of the defendants played any role in

the defendants’ detention following their arrests.

“It is well-established that only those individuals who

participated in the conduct that deprived the plaintiff of his

rights can be held liable under” § 1983. Velez-Rivera v . Agosto-

Alicea,

(1st Cir. 2006). Aside from Parsons

and Nye (who, the plaintiffs say, prepared criminal complaints

against them, see Part II.A.4.b, supra), the amended complaint

does not allege that any of the named defendants participated in

the arrests.27 Aside from Parsons and Nye, then, the plaintiffs

have stated no § 1983 claim against any defendant arising out of

the arrests, regardless of their legality. Similarly, aside from

Nye and Champion (both of whom, the plaintiffs allege,

“requested” that Katz spend 90 days in jail, see i d . ) , the

plaintiffs have stated no § 1983 claim against any defendant

27 The plaintiffs state that “[i]t was the DCYF defendants who conspired to initiate the criminal complaints against the plaintiffs for interference with custody.” Again, though, the plaintiffs have not plausibly alleged any conspiracy between the DCYF employees and the law enforcement officials named as defendants to deprive the plaintiffs of any federally secured rights, including to be free from arrest without probable cause. See Part III.B.2, supra.

80 arising out of their detention, again, regardless of its

legality. So counts 9-10, claiming false arrest, are dismissed

against all defendants besides Parsons and Nye, and counts 11-12,

claiming false imprisonment, are dismissed against all defendants

besides Nye and Champion.

b. Plaintiffs’ arrests

Even though Parsons and Nye did not actually arrest the

plaintiffs, those officers could be liable under § 1983 on the

theory that they “caused the plaintiffs to be unconstitutionally

arrested by presenting a judge with a complaint and a supporting

affidavit which failed to establish probable cause.” Malley v .

Briggs,

(1986). They are entitled to qualified

immunity on such a claim, however, unless “a reasonably well-

trained officer in [their] position would have known that [their]

affidavit failed to establish probable cause.”

.

Here, the affidavit that Parsons submitted in support of the

arrest warrants for the plaintiffs readily establishes probable

cause for their arrest for interference with custody.28

28 Only Parsons applied for the arrest warrants that issued from the Plaistow District Court; Nye’s name does not appear anywhere on the warrant application. Nevertheless, the court has accepted as true the plaintiffs’ allegation that Nye was involved in preparing the application.

81 Under New Hampshire law, a person is guilty of felony

interference with custody

if such person knowingly takes from this state or entices away from this state any child under the age of 1 8 , or causes any such child to be taken from this state or enticed away from this state, with the intent to detain or conceal such child from a parent, guardian or other person having lawful parental rights and responsibilities as described in [N.H. Rev. Stat. Ann. § ] 461-A.

, I . In relevant part, Parsons’s

affidavit states that (a) on November 3 0 , 2007, the Superior

Court issued an order granting legal custody of Eleonora to DCYF,

(b) to take her into custody on behalf of DCYF, Parsons and

McVeigh visited the plaintiffs’ home on December 3 , 2007, where

they told Katz about the custody award, and she responded that

Eleonora “was out of the area,” (c) on December 5 , 2007, Parsons

returned to the plaintiffs’ home to take Eleonora into custody on

behalf of DCYF, and provided Grodman with a copy of the custody

order, but Grodman said that Eleonora was “with Mrs. Katz out of

the area,” and (d) on March 2 4 , 2008, an attorney who appeared

for the plaintiffs in the Superior Court filed a motion stating

that they had “removed [Eleonora] from the State of New Hampshire

because they fear that [she] is in mortal danger if she is again

in the custody of the State.”

82 These allegations amply show probable cause that the

plaintiffs knowingly took Eleonora from the state with the intent

to detain or conceal her from a “person having lawful parental

rights and responsibilities,” i.e., DCYF. Indeed, the motion

that the plaintiffs’ then-counsel filed in the Superior Court

essentially admits as much. The plaintiffs nevertheless advance

two theories as to why Parsons lacked probable cause to apply for

the warrants. Both are manifestly incorrect.

First, the plaintiffs rely on the fact that, while the

Superior Court’s dispositional order awarded DCYF custody of

Eleonora and directed her placement at Crotched Mountain, the

order did not give DCYF guardianship over Eleonora. They argue

that, as a result, Parsons “knew, or should have known, that the

plaintiffs could not be charged with interference with custody,

when DCYF had no right to physical custody without co-temporal

guardianship.” In granting “full legal custody” to DCYF,

however, the dispositional order itself gave DCYF the right to

physical custody. Under New Hampshire law, “‘[l]egal custody

means a status created by court order embodying [certain] rights

and responsibilities,” including, specifically, “[t]he right to

have the physical possession of the child.”

-C:3, XVII(b). So the fact that DCYF lacked guardianship of

Eleonora at the time Parsons applied for the arrest warrants had

83 no effect on DCYF’s right to physical custody of Eleonora and,

consequently, no bearing on the existence of probable cause to

arrest the plaintiffs for interfering with that right.

Second, the plaintiffs argue that Parsons lacked any “basis

to believe that [Eleonora] had been brought back into New

Hampshire” after the Superior Court granted custody of her to

DCYF. To the contrary, the plaintiffs allege, Eleonora “had

moved to Massachusetts in early November 2007,” before the

Superior Court’s order awarding custody of her to DCYF. But even

assuming this is true, the plaintiffs do not allege that they

told it to Parsons, or anyone else involved in attempting to

secure custody of Eleonora for DCYF, at any time before he filed

the application for the arrest warrants.

To the contrary, what the plaintiffs had offered at that

point by way of explanation for Eleonora’s absence was their

lawyer’s statement that they had “removed [her] from the State of

New Hampshire because they fear that [she] is in mortal danger if

she is again in the custody of the State.” Again, this

essentially admits a violation of § 633:4, I.29 Whatever else

29 It appears that the plaintiffs’ counsel’s statement was an effort to invoke a statutory affirmative defense to an interference with custody charge, i.e., “that the person so charged was acting in good faith to protect the child from real and imminent physical danger.”

, III. This defense, however, “shall not be available if the person charged has left the state with the child,”

§ 633:4,

84 can be said of i t , then, the plaintiffs’ allegation that Eleonora

had moved to Massachusetts before the custody order issued does

nothing to plausibly suggest that a reasonable officer in

Parsons’s position would have known that his affidavit failed to

establish probable cause to arrest the plaintiffs for

interference with custody. Again, what Parsons knew was that the

plaintiffs’ lawyer had told the Superior Court that they had

intentionally taken Eleonora from the state so that DCYF could

not secure custody of her.

The plaintiffs also argue that their arrests were illegal

because “there were no criminal charges pending against either

plaintiff” on the dates of their arrests, since, they say, no

complaint or other formal charging document was filed until

afterwards. But this notion finds no support in any Fourth

Amendment jurisprudence and, indeed, reflects a fundamental

misunderstanding of criminal procedure. As the Supreme Court has

held, “what the Constitution requires” for a valid arrest is “a

warrant from a judicial officer ‘upon probable cause, supported

by Oath or affirmation.’” United States v . Ventresca, 380 U.S.

IV, and, in any event, “the Supreme Court has flatly rejected the idea that the police have a duty to investigate potential defenses before finding probable cause.” Acosta v . Ames Dep’t Stores, Inc.,

, 11 (1st Cir. 2004) (citing Baker v . McCollan,

3 7 , 145-46 (1979)).

85 102, 112 (1965) (quoting U.S. Const. amend. I V ) . It does not

require the filing of a charging instrument prior to the arrest.

Finally, the plaintiffs argue at length that Parsons and Nye

acted in “bad faith” in procuring the warrant.30 But this

allegation, even if true, does nothing to diminish the existence

of probable cause to arrest the plaintiffs for interference with

custody. “[T]he Supreme Court has repeatedly held that

‘subjective intentions play no role in ordinary, probable-cause

Fourth Amendment analysis.’” United States v . Fernandez,

6 , 62 (1st Cir. 2010) (quoting Whren,

(bracketing by the court omitted)). In other words, “an

officer’s motive” for an arrest, even if illegitimate, cannot

“‘invalidate objectively justifiable behavior under the Fourth

Amendment.’”

at 62 n.6 (quoting Whren,

)

(bracketing omitted). Parsons and Nye are entitled to qualified

immunity for the plaintiffs’ Fourth Amendment claims insofar as

they arise out of the issuance of the warrant.

30 As support for this argument, the plaintiffs rely heavily on their accusation that, in procuring Katz’s arrest and extradition, Parsons and Nye “misrepresented” that a criminal warrant had issued for her arrest. Again, a warrant for Katz’s arrest issued from the Plaistow District Court on May 3 0 , 2008.

86 c. Plaintiffs’ detention

Because, as just discussed, there was probable cause to

arrest the plaintiffs, there was also probable cause to detain

them following their arrests. The plaintiffs do not question

Grodman’s detention on any other basis. While the plaintiffs

complain about aspects of Katz’s detention, those complaints are

without merit, at least insofar as they are directed at the

defendants named in this lawsuit.

The plaintiffs’ chief complaint is about the length of

Katz’s detention following her arrest. They allege that she was

held without bail in Massachusetts for some 90 days “on the

request of” Nye and Champion. The plaintiffs also allege that,

following Katz’s arraignment, Nye “inquired about [her]

immigration status, causing ICE to place an immigration hold on

her without bail” and, furthermore, that Nye “continued to use

the false immigration detainer without bail to deny [Katz]

release from custody . . . even after [she] was granted bail,”

resulting in her spending an additional 40 days in jail in New

Hampshire after her extradition.

As this court has observed, “our constitutional system

places responsibility for releasing a detainee on the judicial

system, rather than on law enforcement officers who have

accomplished the detention.” Holder v . Town of Newtown,

Supp. 2d 1 5 0 , 155 (D.N.H. 2009) (citing Baker v . McCollan,

3 7 , 146 (1979) and Brady v . Dill,

0 4 , 111-14 (1st

Cir. 1999)). So does the law of New Hampshire (which gives the

authority to issue bail orders to a bail commissioner, before the

detainee’s arraignment,

, and

afterwards to a court,

§ 597:2) and Massachusetts (which is

similar, see

8 ) . The plaintiffs’

complaints about Katz’s detention without bail, then, would

appear to be misdirected.

Although the court of appeals has held that a police officer

who “help[ed] to shape, and exercis[ed] significant influence

over, the bail decision” can be liable under § 1983 for excessive

bail that results, Wagenmann v . Adams,

(1st

Cir. 1987), that holding does not support the plaintiffs’ claims

against Nye and Champion here, for at least three reasons.

First, as this court has explained, “Wagenmann was a case of

action that resulted in a clear violation of the Eight Amendment

right against excessive bail,” Holder v . Town of Newton,

, 3 1 , aff’d without opinion, N o . 10-1227 (1st Cir. Sept. 2 ,

2010), rather than a denial of bail. This is a key distinction

because, while “[t]he Eight Amendment prohibits ‘excessive bail,’

the Constitution ‘says nothing about whether bail shall be

88 available at all.’”

at 27 (quoting United States v . Salerno,

-53 (1987) (further citation omitted)).

Second, in further contrast to Wagenmann, the plaintiffs do

not allege facts supporting a plausible inference that Nye or

Champion “helped to shape” or “exercised significant influence”

over the decisions to deny bail to Katz. Indeed, the plaintiffs

do not claim that Nye (or Champion) had any role in ICE’s alleged

issuance of an “immigration hold” on Katz, other than to

“inquire” as to her immigration status. Even as to the decision

to deny bail to Katz in Massachusetts, the amended complaint says

merely that Nye and Champion “requested” that outcome; the

defendant officer in Wagenmann went further, “describ[ing] the

nature of the various charges, the amount of money on [the

plaintiff’s] person, and the like” to the bail commissioner.

. The plaintiffs here do not allege that Nye or

Champion did anything of the sort.

Third, the plaintiffs do not suggest that either decision to

deny bail to Katz was mistaken. Unlike in Wagenmann, where there

was “no legitimate reason to think [the detainee] . . . might

flee,”

, Katz had been arrested for fleeing the state

with Eleonora in order to thwart DCYF’s custody rights.

Given the significant differences between the facts alleged

here and those found in Wagenmann, then, that case hardly serves

89 as “reasonable notice that the specific conduct [Nye and Champion

are] alleged to have committed . . . is unlawful.” Riverdale

Mills Corp. v . Pimpare,

5 , 66 (1st Cir. 2004). Nor, so

far as the court’s research reveals, does any other controlling

caselaw, or “robust consensus of cases of persuasive authority.”

al-Kidd, 131 S . C t . at 2083-84. Accordingly, even if Nye or

Champion violated some right Katz has under the Constitution by

“requesting” her detention without bail or “inquiring about [her]

immigration status” (an issue which the court need not and does

not decide), they are entitled to qualified immunity from any claim based on that violation.31

D. Remaining claims

The plaintiffs’ remaining claims (1) challenge other actions

that law enforcement officers took against the plaintiffs as

violations of their constitutional rights or (2) assert state-law

31 This conclusion applies with equal force to any claims that, following Katz’s arrest, Nye (a) “requested a no contact order” preventing contact between her and Grodman while Katz was jailed and (b) “called the Social Security Administration and ensured that the Grodmans’ Social Security retirement payments were stopped.” Like the decisions to deny bail to Katz, the decisions to prevent contact between the plaintiffs while she was detained, and to stop Grodman’s social security payments, were not made by Nye, nor does the amended complaint alleged facts (as opposed to conclusions) plausibly showing that Nye “helped to shape” or “exercised significant influence” over those decisions.

90 tort theories. For the reasons discussed below, the defendants

are entitled to dismissal of those claims as well.

1. Other law enforcement conduct

a. Interference with effective assistance of counsel

Count 17 of the amended complaint claims that all of the

Rockingham County defendants “interfered with [Katz’s] right to

effective assistance of counsel by speaking [with her] attorney

to undermine [her] representation in a criminal matter.” This

appears to refer to the plaintiffs’ allegations that Nye attended

Katz’s arraignment in Massachusetts “just in case [she] tried

lying to the judge” and, while there, “inappropriately spoke to

[Katz’s] defense counsel,” telling counsel that “all of [Katz’s]

addresses come back to U.P.S. stores so [Nye] knew that

everything [Katz] was telling [counsel] was lies.”

Among other problems with this claim, “‘ineffective

assistance’ is not a ground of civil damages liability” against

law enforcement officers on the theory that their actions

“deprived [a plaintiff] of effective assistance of counsel”

during criminal proceedings. Sutton v . Kooistra,

(table),

, at *2 (7th Cir. Oct. 2 6 , 1999)

(unpublished opinion). Instead, “ineffective assistance” is a

ground for collateral relief from a criminal conviction or

91 damages against counsel on a legal malpractice claim,

which

are not among the relief sought here. Count 17 is dismissed.

b. Traffic stop

The plaintiffs complain that, based on Parsons’s issuance of

a “[‘Be on the Lookout’] to Massachusetts police requesting the

arrest of plaintiffs,” they were subjected “to a traffic

stop/arrest” in that state even though “Parsons admittedly had no

legal authority to issue the [‘Be on the Lookout’] to stop the

plaintiffs in another state, much less detain and question them.”

But the plaintiffs do not identify any limits on the authority of

a police officer in one state to ask police officers in another

state to make an arrest, at least where (as here) the arrest is

supported by probable cause.

Indeed, courts have consistently held, at least since the

Supreme Court’s decision in Virginia v . Moore,

6 4 , 175

(2008), that the Fourth Amendment does not even incorporate

state-law limits on a police officer’s authority to personally

make a cross-border arrest. See, e.g., United States v . Sed,

2 4 , 228 (3d Cir. 2010); United States v . Goings,

(11th Cir. 2009); United States v . Gonzales,

(10th Cir. 2008); Rose v . City of Mulberry,

7 8 , 680 (8th Cir. 2008); c f . Santoni v . Potter,

(1st Cir. 2004) (expressing no opinion on that issue

92 pre-Moore). S o , even if Parsons’s issuance of the alert to

Massachusetts authorities amounted to a request to arrest the

plaintiffs if they were found there, that would not implicate the

Fourth Amendment. Insofar as any of the plaintiffs’ Fourth

Amendment claims are based on the traffic stop, then, those

claims are dismissed.

c. Warrantless entry into Stuart Grodman’s apartment

The plaintiffs also complain that McVeigh, accompanied by

the three Boston police officers named as defendants here, made a

warrantless entry into Stuart Grodman’s apartment in East Boston.

See Part II.A.3.a, supra. This claim did not appear in the

plaintiffs’ initial complaint in this action, which did not name

Stuart Grodman as a plaintiff, nor any Boston police officer as a

defendant. The plaintiffs’ initial complaint, in fact, did not

so much as hint at any entry into Stuart Grodman’s apartment o r ,

for that matter, any illegal entry by anyone into any place.

Rather, the plaintiffs’ claim of a warrantless entry into

Stuart Grodman’s apartment first appeared in the plaintiffs’

first amended complaint, which they sought leave to file on March

3 , 2011. As the defendants point out, this was more than three

years after the warrantless search allegedly occurred, on January

1 6 , 2008. The defendants therefore argue that any Fourth

93 Amendment claim arising out of the illegal entry is barred by the

three-year statute of limitations. See Part III.A.2.b, supra.

In trying to escape this conclusion, the plaintiffs argue

that the first amended complaint relates back to the date they

filed their original complaint--which was September 1 7 , 2010,

less than three years after the alleged warrantless entry. Rule

15(c) of the Federal Rules of Civil Procedure provides that “[a]n

amendment to a pleading relates back to the date of the original

pleading when,” in relevant part, “the amendment asserts a claim

that arises out of the conduct, transaction, or occurrence set

out--or attempted to be set out--in the original pleading.” Fed.

R. Civ. P. 15(c)(1)(B).

The plaintiffs do not explain how the warrantless entry

claim satisfies this standard. Again, the original complaint

says nothing about any warrantless entry whatsoever, either by

making such a claim or setting forth any factual allegations as

to the January 2008 incident. To the contrary, the amended

complaint describes a course of law enforcement conduct that

begins with Parsons’s actions to try to apprehend the plaintiffs

in May 2008, which was several months after the alleged

warrantless entry into Stuart Grodman’s apartment, and did not

even involve any of the same law enforcement personnel.

94 The Supreme Court has held that an amendment does not relate

back under the “conduct, transaction, or occurrence” standard of

Rule 15(c) “when it asserts a new ground for relief supported by

facts that differ in both time and type from those the original

pleading set forth.” Mayle v . Felix,

4 4 , 650 (2005).

That is precisely what the first amended complaint does as to the

claim that McVeigh and the Boston Police officers wrongfully

entered Stuart Grodman’s apartment. So that claim does not

relate back to the date of the original complaint, with the

result that it is barred by the statute of limitations. Insofar

as the plaintiffs’ Fourth Amendment claims (including the

invasion of privacy claim, see Part III.B.7, supra) are based on

the warrantless entry, they are dismissed as time-barred.

2. State-law claims

a. Negligence and “social worker malpractice”

Count 28 of the amended complaint charges the DCYF

defendants with negligence for “failing to use reasonable care in

their interactions with the plaintiffs.” But the amended

complaint does not allege any “interactions” between the

plaintiffs and any of the DCYF defendants aside from McVeigh,32

32 If by “interactions,” the plaintiffs mean the DCYF defendants’ conduct during the neglect, custody, and guardianship proceedings, that cannot serve as the basis of a negligence claim. As the plaintiffs expressly acknowledge in their

95 and its accounts of those interactions do not plausibly state any

negligence on his part. Furthermore, the plaintiffs themselves

allege that their interactions with McVeigh ended in November

2007, which was prior to the start of the three-year limitations

period. See Part III.A.2.b, supra. Count 28 is dismissed.

Count 29 of the amended complaint, entitled “social worker

malpractice,” claims that DCYF “owed the [plaintiffs] a duty of

care to provide them with competent services” and “to take all

appropriate actions to protect [Eleonora] from all danger [while]

she remained in state custody.” Among other problems, this claim

seeks money damages against a state agency, so it is barred by

the Eleventh Amendment. See Will v . Mich. Dep’t of State Police,

8 , 71 (1989). Count 29 is also dismissed.

b. Defamation

Count 31 of the amended complaint alleges that all of the

defendants “caused the publication of false, misleading and

untrue information about the plaintiffs, including that [they]

objection, the DCYF employee who brought and conducted all of those proceedings on its behalf, Matel, “is entitled to prosecutorial immunity from money damages in his role as an advocate.” The DCYF employees who provided testimony during those proceedings are likewise immune from suit for that conduct. See Provencher v . Buzzell-Plourde Assocs.,

4 8 , 853 (1998) (holding that “[s]tatements made in the course of judicial proceedings constitute one class of communications that is privileged from liability in civil actions,” subject to an exception inapplicable here).

96 were mentally ill, were sexual perverts, and/or were abusive and

neglectful toward their blood relatives.” This echoes an

allegation in the body of the amended complaint that “[a]fter

[the plaintiffs] removed Eleonora from the public school system,

the defendants continued to smear [the plaintiffs] calling them

mentally ill, obstructionist and hostile, among other things.”

Taken alone, these allegations are merely “[s]ubjective

characterizations or conclusory descriptions of a general

scenario which . . . will not defeat a motion to dismiss.”

Murphy v . United States,

2 0 , 522 (1st Cir. 1995)

(quotation marks and bracketing omitted).

The balance of the amended complaint nowhere alleges that

the vast majority of the defendants made any statements about the

plaintiffs at all.33 Likewise, the plaintiffs’ objection to the

motions to dismiss does not address the defamation claim against

any defendant aside from Lovett (and agrees to dismiss the

33 The amended complaint alleges that various DCYF defendants made false statements about the plaintiffs during the course of the guardianship proceedings, but, as just noted, those statements are absolutely privileged under New Hampshire law. See note 3 2 , supra. As also noted several times already, while the amended complaint claims that Nye and Parsons falsely stated, after May 3 0 , 2008, that warrants had issued for the plaintiffs’ arrests, those statements were in fact true, as were alleged statements by Nye and Champion that there were immigration “proceedings” against Katz following her arrest, see Part II.A.4.b, supra. Aside from these statements, and those attributed to Lovett, discussed infra this part, the court cannot locate any other false statements in the amended complaint.

97 defamation claim against two of the defendants, Roy and

Katragadda). As to Lovett, the plaintiffs argue that she “made

10's [sic] of baseless allegations of abuse and/or neglect which

she knew, or should have known, were unfounded.”

The only “unfounded” abuse or neglect allegations alleged in

the amended complaint, however, were Lovett’s complaints to DCYF

prior to its institution of the neglect proceedings against the

plaintiffs in April 2006. As already discussed, Lovett made

those complaints more than three years before the plaintiffs

commenced this action, so any claim based on them is barred by

the statute of limitations, see Part II.B.2.b, supra (which is

three years for actions for slander and libel,

, I I ) . As is the case with the retaliation claim,

then, the amended complaint does not even arguably state a

plausible defamation claim against any defendant besides Lovett

and Timberlane, but the claim against them is time-barred. Count

31 is dismissed.

c. Intentional infliction of emotional distress

Count 26 of the amended complaint claims that all of the

defendants intentionally inflicted emotional distress on the

plaintiffs through “actions and/or inactions which, because of

their grossly illegal and unconstitutional nature, were so

outrageous that . . . [they] would have caused any reasonable

98 person . . . severe emotional distress.” As the disposition of

all of the plaintiffs’ other claims makes clear, however, they

have not alleged any “grossly illegal or unconstitutional

behavior” on the part of any defendant. At the absolute worst,

the plaintiffs have alleged a few instances of conduct that were

arguably unconstitutional (a point as to which, again, this court

expresses no view), but not “grossly” s o . To state a claim for

intentional infliction of emotional distress, “it is not enough

that [the defendant] ‘has acted with an intent which is tortious

or even criminal,’” nor, for that matter, “‘that his conduct has

been characterized by malice.’” Mikell v . Sch. Admin. Unit N o .

3 3 ,

(2009) (quoting Restatement (Second) of

Torts § 46 cmt. d (1965)). Count 26 is dismissed.

d. Exemplary damages

Finally, count 27 seeks exemplary damages against all of the

defendants. Because all of the plaintiffs’ state-law claims have

been dismissed, though, they cannot recover any form of damages,

exemplary or otherwise, so count 27 must be dismissed as well.

See Meyer v . Callahan,

, 1 n.1.

99 IV. Conclusion

For the foregoing reasons, the defendants’ motions to

dismiss34 and for judgment on the pleadings34 are GRANTED. As

noted above, the plaintiffs have twice moved for leave to amend

their complaint yet again. See Fed. R. Civ. P. 15(a)(2). These

motions, however, do not seek to amplify any of the plaintiffs’

factual allegations, but to add claims for (A) malicious

prosecution, (B) abuse of process, and (C) violation of Katz’s

equal protection rights under the Fifth Amendment, as well as

(D) a request for a permanent injunction.35 See Part II.B.2,

supra. Those claims are futile because (A) there was probable

cause to charge the plaintiffs with interference with custody,

see Part III.C.2.b, (B) the proposed amendment does not plausibly

allege that any criminal process was used against the plaintiffs

“primarily to accomplish a purpose for which it was not

designed,” Restatement (Second) of Torts § 682 & cmt. b (1965),

(C) the Fifth Amendment does not apply to the actions of state,

county, or local governments, see note 2 0 , supra, and (D) the

34 Document nos. 1 0 8 , 1 1 2 , 1 1 4 , 116, 119, 121-123. 34 Document nos. 1 1 0 , 117. 35 The proposed amendment also seeks to add Eleonora as a plaintiff. But the plaintiffs cannot bring claims on Eleonora’s behalf in a pro se capacity. See Part III.A.1, supra.

100 plaintiffs have not plausibly alleged any likelihood of future

harm, see Part III.A.3, supra.

The plaintiffs’ motions for leave to amend36 are therefore

DENIED because the proposed amendments are futile. See Hatch,

9 . The second motion to amend is also denied for

the independent reason that it was brought with undue--and

unexplained--delay, more than two years after the action was

commenced and more than 19 months after the first amended

complaint was filed. See Feliciano-Hernandez v . Pereira-

Castillo,

2 7 , 538 (1st Cir. 2011). The plaintiffs’

first amended complaint is DISMISSED. The clerk shall enter

judgment accordingly and close the case.

SO ORDERED.

Joseph N . Laplante T j!nited States District Judge

Dated: March 1 6 , 2013

cc: Elena Katz, pro se Arnold Grodman, pro se Stuart Grodman, pro se Rebecca L . Woodard, Esq. Nancy J. Smith, Esq. Brian J.S. Cullen, Esq. Adam B . Pignatelli, Esq. Michael A . Pignatelli, Esq.

36 Document nos. 152, 195.

101 Donald L . Smith, Esq. Paul B . Kleinman, Esq. Charles P. Bauer, Esq. Corey M . Belobrow, Esq. W . Daniel Deane, Esq. Biron L . Bedard, Esq. Julie Ciollo, Esq. Michelle Hinkley, Esq. Raquel J. Webster, Esq.

102