Tringali v. Attuso 14-cv-124-LM 4/24/14 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Leisha Tringali

v. Civil No. 14-cv-124-LM Opinion No.

Hannah Attuso, et al.

O R D E R

Leisha Tringali, appearing pro se and in forma pauperis,

brings suit against numerous named employees of the

Massachusetts Department of Revenue, Child Support Enforcement

Agency (“CSE”), and the Massachusetts Registry of Motor Vehicles

(“the RMV”), as well as a number of unnamed “John Does,” also

employees of CSE. She sues all defendants in both their

official and individual capacities. The suit arises from the

defendants’ alleged failure to afford Tringali notice and a

hearing before attempting to enforce an allegedly illegal child-

support order against her and then suspending her driver’s

license as a result of her failure to pay child-support

arrearages. Tringali seeks relief under

for

procedural due-process violations, and alleges that defendants

committed identity fraud and violated the Racketeer Influenced

and Corrupt Organizations Act,

(“RICO”).

She also alleges various acts of negligence on the part of

defendants for failing to take corrective action within CSE. Background

The crux of plaintiff’s complaint is that her due-process

rights have been violated because she had no opportunity to

challenge an order that she is obligated to pay child support.

She claims that the child-support order required one “Leisha

Eshbach” to pay child support. Despite the fact that plaintiff

states that she has never used the name “Leisha Eshbach,” the

arrearages and collection efforts have been directed at her.

According to plaintiff, CSE employees who have acted in

accordance with the purportedly illegal order have been

depriving her of due process. The complaint does not allege

that defendants played any role in either issuing the child-

support order or denying her an opportunity to be heard before

the order’s issuance. Rather, each named defendant appears to

be involved only in the post-hearing enforcement process.

In 2012, plaintiff filed a similar lawsuit against: (1)

CSE; and (2) other state agencies including the RMV; and (3)

Doug Comfort, an employee of CSE, who is also a named defendant

in this case. Although plaintiff has sued a different set of

defendants here (with the exception of Comfort), the factual

allegations in this complaint arise from the same nucleus of

facts that gave rise to her 2012 case. In a Memorandum and

Order dated November 13, 2012, Judge Barbadoro granted the

2 defendants’ motion to dismiss plaintiff’s 2012 complaint,

finding that the state agencies were entitled to Eleventh

Amendment immunity from her claims for damages. See Tringali v.

Mass. Dep’t of Trans. Asst., No. 12-cv-124-PB,

(D.N.H. Nov. 13, 2012) (“Tringali I”). Judge Barbadoro also

dismissed plaintiff’s claims against Comfort on the grounds that

“she [had] not pleaded sufficient facts to show either that

Comfort proximately caused the violations she allege[d] or that

he has the power to implement an order granting her the relief”

she [sought].” Tringali I,

, at *4.

Factual Allegations

The background facts underlying plaintiff’s history with

CSE and the RMV are adequately summarized in Tringali I, and

need not be repeated here. A summary of plaintiff’s allegations

against each defendant in the instant lawsuit follows.

A. Hannah Attuso

While employed by CSE as an attorney in June of 2002,

Attuso filed a motion before the Middlesex Probate and Family

Court (Donnelly, J.) seeking financial information about Leisha

Eshbach. Attuso allegedly denied plaintiff due process “when

deciding the amount of her child support obligation.”

3 B. Amy Pitter

While serving as Commissioner of CSE in June of 2013,

Pitter did not return a voicemail message plaintiff left for

her. Pitter then failed to take action (presumably in response

to plaintiff’s voicemail message) to ensure that plaintiff was

the proper party on the child-support arrearage paperwork.

Pitter allegedly conspired with other defendants (McGrath and

Davis) to deprive plaintiff of access to a certain case record.

Pitter then failed to provide plaintiff with her case records

despite being copied on plaintiff’s June 21, 2013, written

request for those records.

C. Laurie McGrath

While serving as Deputy Commissioner for CSE in June of

2013, McGrath did not return a voicemail message plaintiff left

for her. McGrath also sent plaintiff one of the notices

informing her of “a new Income Order/Notice of Support.”

McGrath “retaliated against plaintiff by sending such notice”

because of McGrath’s alleged awareness of plaintiff’s

allegations against CSE and her pending appeal of Judge

Barbadoro’s ruling in Tringali I.

D. Doug Comfort

In October of 2006, Comfort “intercepted [two] insurance

claim settlement payment[s]” to plaintiff, each in the amount of

4 $5,000. Comfort failed to respond to plaintiff’s “demand

letter” dated October 13, 2011, in which she alerted him to her

due-process concerns.

E. Darrin Davis

While serving as a Child Support Enforcement Specialist at

CSE in June of 2013, Davis failed both to respond to plaintiff’s

voicemail message in which plaintiff requested that he provide

her with certain case records. He also failed to assist or

respond to plaintiff “through telephone calls, in face to face

meetings, or in writing.”

F. Mary Ellen Lembo

While serving as an employee of CSE on June 19, 2013, Lembo

signed a “registration statement,” attesting that, to the “best

of her knowledge and belief,” plaintiff had accrued child-

support arrearages in a certain amount. This statement was sent

pursuant to a request from the New Hampshire Department of

Health and Human Services, Division of Child Support.

G. FNU (first name unknown) Anilton

On June 23, 2010, the RMV received notice from CSE that

plaintiff’s license was to be suspended, effective July 3, 2010,

for failure to pay child support. While serving as an employee

at the RMV in June of 2010, Anilton spoke with plaintiff and

explained to her that the RMV did not have a copy of the order

5 but had only received a “computer generated notice” from CSE.

Despite plaintiff’s having explained that the order was

“fraudulent,” Anilton failed in his duty to “lift the

suspension.” Anilton explained that once plaintiff cleared her

obligations with CSE, she could return to the RMV and seek to

have her license reinstated.

H. Rachel Kaprielian

While serving as Registrar of the RMV on June 23, 2010,

Kaprielian sent Tringali a notice that the suspension of her

driver’s license would go into effect on July 3, 2010.

I. John Does 1 & 2

While employed at CSE on unspecified dates, John Doe 1

transferred plaintiff’s social security number without her

express authorization in an effort to assist John Doe 2, also

employed by CSE, to create a “synthetic identity” so that CSE

could obtain child-support payments from plaintiff.

J. John Doe 3

While employed at CSE on March 24, 2003, John Doe 3 “levied

$475.98” from plaintiff’s bank account.

K. John Doe 4

While employed at CSE on April 26, 2003, John Doe 4

intercepted an insurance-claim payment directed to plaintiff in

the amount of $1327.50.

6 L. John Doe 5

While employed at CSE on September 13, 2003, John Doe 5

“levied $1906.00” from plaintiff’s bank account.

M. John Doe 6

After plaintiff requested “administrative review” of the

seizures of her money from CSE, John Doe 6 never gave plaintiff

“proper notice of the outcome . . . .”

Discussion

When a court reviews a complaint filed by a plaintiff who

is proceeding in forma pauperis and determines that it seeks

monetary relief against a defendant who is immune from such

relief, is frivolous, or fails to state a claim on which relief

may be granted, “the court shall dismiss the case.”

(e)(2). In determining whether a pro se complaint states a

claim, the court must construe the complaint liberally. See

Erickson v. Pardus,

(2007) (per curiam). To

survive preliminary review, the complaint must contain

“sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)); See also Sepúlveda–Villarini v. Dep’t

of Educ.,

(1st Cir. 2010).

7 To determine plausibility, the court treats as true all

well-pleaded factual allegations, and construes all reasonable

inferences drawn therefrom in the plaintiff’s favor. See

Ocasio–Hernández v. Fortuño–Burset,

(1st Cir.

2011). “[A]n adequate complaint must include not only a

plausible claim but also a plausible defendant. The plaintiff’s

complaint must include sufficient facts so that the court can

conclude that the named defendant is responsible for the alleged

misconduct.” Tringali I,

, *4 (internal

quotation mark and citations omitted). “An allegation that is

‘threadbare or speculative’ will fail to cross the line between

possible and plausible.”

(quoting Peñalbert–Rosa v.

Fortuño–Burset,

(1st Cir. 2011)).

A. Claims Barred by Eleventh Amendment Immunity

Plaintiff seeks monetary relief against each defendant in

his/her official capacity. “[I]t is well settled,” however,

“that neither a state agency nor a state official acting in his

official capacity may be sued for damages in a section 1983

action.” Fantini v. Salem State Coll.,

(1st

Cir. 2009) (internal quotation marks and citation omitted).

That is, the Eleventh Amendment bars retrospective actions for

damages under § 1983 against an unconsenting state, state

agency, or state officers acting in their official capacities.

8 See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

(1993) (“Absent waiver, neither a State nor

agencies acting under its control may be subject to suit in

federal court.”) (internal quotation marks and citations

omitted); see also Will v. Mich. Dep’t of State Police,

(1989) (explaining that Congress did not abrogate states’

Eleventh Amendment immunity under § 1983).

In Tringali I, Judge Barbadoro dismissed the claims for

damages against Comfort in his official capacity, and the claims

for damages against both CSE and the RMV, on grounds of Eleventh

Amendment immunity. Tringali I,

, at *3. For

the same reasons that Judge Barbadoro dismissed those claims

against the state-agency defendants in Tringali I, the claims

for damages in this case that have been asserted against

defendants in their official capacities are also subject to

dismissal. The Eleventh Amendment, however, does not bar

plaintiff’s claims for damages against the defendants she has

sued in their individual capacities.1 A discussion of the

remaining claims follows.

1 Although plaintiff includes a request for prospective injunctive relief, her complaint does not make clear the basis on which she seeks, or the nature of, that relief. The court construes her complaint as seeking retrospective relief, or money damages.

9 B. Claims Barred by the Statute of Limitations

Because federal law does not provide a limitation period

for § 1983 claims, courts borrow the statute of limitations for

personal-injury actions of the state where the federal claim is

filed. See Wilson v. Garcia,

, 276–80 (1985). In

New Hampshire, the limitation period for personal-injury actions

is three years. See

, I. That

period begins to run upon the occurrence “of the act or omission

complained of,”

unless “the injury and its causal

relationship to the act or omission was not discovered and could

not reasonably have been discovered at the time of the act or

omission,”

Under those circumstances, the limitation period

begins to run “at the time the plaintiff discovered, or, in the

exercise of reasonable diligence should have discovered, the

injury and its causal relationship to the act or omission as

complained of.”

In this case, plaintiff had three years from the date on

which she became aware of her injury to file a § 1983 lawsuit

against the defendants to whom she attributes her injury. Here,

the § 1983 claims against Attuso, Kaprielian, John Does 1-6, and

the claim against Comfort based upon an allegation that he

intercepted an insurance payment, clearly appear to have been

filed outside the three-year limitation period and are,

10 therefore, subject to dismissal. See Jones v. Bock,

(2007) (describing time-barred claim as subject to

dismissal for failure to state a claim, based upon

(e)(2)(B)(ii)); see also Hamilton v. Dineen,

(1st Cir. 2001) (affirming dismissal of time-barred claim as

frivolous, based upon

(a)(2)(B)(i)).

C. Due-Process Claims

Plaintiff characterizes the actions of defendants as having

deprived her of her due-process rights. To the extent plaintiff

is alleging that a defendant negligently violated her due-

process rights, such a claim is not actionable under § 1983.

See Daniels v. Williams,

(1986). To the

extent plaintiff is alleging that a defendant intentionally

deprived her of a due-process right, such a claim is not

actionable under § 1983 where the state provides an adequate

post-deprivation remedy.2 See Hudson v. Palmer,

(1984); Lowe v. Scott,

(1st Cir. 1992).

Here, it is clear that Massachusetts provides individuals, such

as plaintiff, who contest an action to collect a child-support

arrearage, an avenue for seeking administrative and judicial 2 For purposes of this analysis, I assume that plaintiff has sufficiently alleged both that she has a protected property interest and that the conduct was committed by a person acting under color of state law. Lowe v. Scott,

(1st Cir. 1992).

11 review. See Mass. Gen. Laws. (“MGL”) ch. 119A, § 16(c). This

is also true for individuals who, like plaintiff, contest a

child-support enforcement action that results in the suspension

of the obligor’s driving privileges. See MGL ch. 119A, § 16(e).3

To sum up, plaintiff claims that her due-process rights

were violated by either negligent or intentional acts on the

part of the defendants. For the reasons explained above, her

due-process claims are not cognizable under § 1983 and are

subject to dismissal.4 See

(e)(2)(B)(ii).

D. RICO Claim

Plaintiff alleges a RICO conspiracy among several of the

defendants. Her complaint, however, contains no facts that

could be construed as constituting a pattern of racketeering

activity as is required to state a civil RICO claim. See Sys.

Mgmt., Inc. v. Loiselle,

(1st Cir. 2002)

(describing “pattern of racketeering activity” actionable in a 3 Plaintiff asserts a claim that § 16(e) is “unconstitutional.” Because plaintiff has offered neither factual support nor legal argument for that claim, it is dismissed. 4 Plaintiff is not claiming that this is a case where the statute gives the defendants “such unfettered discretion as to remove this case from the reach of Parratt-Hudson.” San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá,

(1st Cir. 2012); see also Parratt v Taylor,

(1981) (holding that predeprivation process was not required where state prison guard negligently destroyed property of prisoner); Hudson,

(extending Parratt to state prison guard’s intentional destruction of prisoner’s property).

12 civil RICO suit). For this reason, plaintiff’s RICO claim is

subject to dismissal. See

(e)(2)(B)(ii).

E. Claim that Defendants Committed Identity Theft

Plaintiff alleges that certain defendants committed the

crime of “aggravated identity theft” by using her social

security number without her permission to create the false

identity that enabled defendants to levy her property and

suspend her driving privileges. Plaintiff has no right to have

defendants criminally prosecuted. See Linda R.S. v. Richard D.,

(1973) (“a private citizen lacks a judicially

cognizable interest in the prosecution of another”). This claim

is therefore subject to dismissal. See

(e)(2)(B)(ii).

F. Claims that are Frivolous

Allegations that employees of a state agency failed to

return plaintiff’s phone calls, respond to a letter from

plaintiff, or refused to meet with plaintiff face-to-face do not

rise to the level of a cognizable federal or state claim and are

frivolous. Thus, to the extent that plaintiff asserts such

claims against Pitter, McGrath, Comfort and Davis, those claims

are subject to dismissal. See

(e)(2)(B)(i) &

(ii).

13 G. State Law Claims

Because of all the federal claims in this action are

subject to dismissal, the court declines to exercise its

supplemental jurisdiction over the remaining state-law

negligence claims. See

(c)(3).

Conclusion

For all of the reasons detailed above, the court finds that

plaintiff’s complaint is subject to dismissal under

(e)(2). The court gives plaintiff thirty days from the date

of this order to file an amended complaint or show cause why her

complaint should not dismissed. In the event plaintiff fails to

amend her complaint to cure these deficiencies or fails to show

cause why this complaint should not be dismissed, the court will

dismiss her complaint in its entirety.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

April 24, 2014

cc: Leisha Tringali, pro se

14