UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael Brochu

v. Civil No. 21-cv-384-JD Opinion No.

Robert Foley, et al.

O R D E R

Michael Brochu, who is proceeding pro se and in forma

pauperis, seeks declaratory and injunctive relief based on

claims under

against two state court judges and

a state judicial referee. Brochu’s claims arise from

proceedings in the 7th Circuit Family Division, Rochester, New

Hampshire, pertaining to support payments for his minor

children. The complaint is before the court for preliminary

review under LR 4.3(d)(2) and

(e)(2).

Preliminary Review Standard

In conducting preliminary review, the court may dismiss one

or more claims if, among other things, the court lacks

jurisdiction, a defendant is immune from the relief sought, or

the complaint fails to state a claim upon which relief may be

granted. See

(e)(2); LR 4.3(d). To determine

whether the complaint states a claim on which relief may be

granted, the court uses the standard applied under Federal Rule of Civil Procedure 12(b)(6). Lanza v. Moclock,

, 716 (3d Cir. 2021); Allen v. St. John,

,

1004-05 (11th Cir. 2020); Trazell v. Arlington County,

, 858 (4th Cir. 2020); Khan v. Barela,

, 604 (10th Cir. 2020). Pro se complaints are construed

liberally. See Erickson v. Pardus,

,

,

(2007) (per curiam).

To avoid dismissal, the complaint must contain “sufficient

factual matter, accepted as true, to ‘state a claim to relief.’”

Ashcroft v. Iqbal,

,

,

(2009) (citation omitted). The court treats as true

all well-pleaded factual allegations and construes reasonable

inferences in plaintiff's favor. Justiniano v. Walker,

(1st Cir. 2021). While the court takes factual

allegations as true, it does not credit legal conclusions or

statements that merely provide the elements of a cause of

action.

Background

Brochu alleges that in 2014 Judge Robert Foley issued a

final parenting order in which Brochu’s parental rights as to

his two minor children were terminated. Brochu moved for

reconsideration, alleging errors in notification and service.

His motion was denied.

2 In October of 2019, Brochu filed a petition to modify and

change the court’s support order as it pertained to another

child, who Brochu alleges had reached the age of majority.

Judge Foley and Judicial Referee Colligan presided in that

proceeding. The petition was denied, based on the

recommendation of Referee Colligan. Brochu moved for

reconsideration, asserting violations of court rules and the

rules of evidence. That motion was denied based on the

recommendation of Referee Colligan.

Brochu filed a complaint with the New Hampshire Judicial

Conduct Committee against Referee Colligan that challenged

statements she made during the hearing on his petition. Brochu

alleged that her statements violated New Hampshire Code of

Judicial Conduct Rule 2.3 due to bias, prejudice, and

harassment. He also filed a complaint against Judge Foley,

alleging violation of his supervisory duties. Brochu states

that the New Hampshire Judicial Conduct Committee reached a

determination on June 12, 2020, but he does not state what

determination was made.

In July of 2020, the New Hampshire Division of Child

Support Enforcement filed a motion to modify and change the

support order as it pertained to the two minor children for whom

Brochu’s parental rights had been terminated. Two hearings were

held with Judge Foley and Referee Colligan presiding. Brochu

3 alleges that during the proceedings Referee Colligan spoke to

him “in a way that was unbecoming of a Judicial Referee.” Doc.

1, at *3. He also alleges that he was ordered “to commit a

criminal offense against his wife under threat of default” and

that he was defaulted because he refused. He further alleges

that he was not able to file an interlocutory appeal because he

did not follow the New Hampshire Supreme Court procedures. He

alleges that the final child support order was issued by Judge

Mark Weaver.

In his statement of his claims, Brochu alleges that the

defendants denied him the protections of due process and equal

protection under the Fourteenth Amendment. Those violations

occurred, Brochu alleges, when he was unable to seek

interlocutory relief, the defendants followed him to other

jurisdictions, when he was ordered “to commit a criminal act

against his wife in an attempt to achieve a higher child support

award,” when the defendants accepted ex parte communications and

“Acted Ultra Vires” in ordering him to pay child support, and

when the defendants maliciously interfered with his property.

Doc. 1, at *4. He seeks a declaratory judgment, an injunction

commanding the defendants not to preside in any cases in which

he is a party, an injunction commanding the defendants not to

issue orders in violation of his Fourteenth Amendment rights,

and costs of litigation.

4 Discussion

Brochu’s claims raise issues concerning the court’s

jurisdiction and, if jurisdiction exits, whether the court would

abstain. Because Brochu seeks to undue the child support order

issued in the state court support proceedings, his complaint

implicates the Rooker-Feldman doctrine.1 Further, to the extent

the relief he seeks would interfere in ongoing child support

proceedings, the court must consider abstention. In addition,

even if Brochu could proceed past the jurisdictional and

abstention issues, he has not alleged sufficient facts to show

Fourteenth Amendment violations.

A. Rooker-Feldman Doctrine

The United States Supreme Court has exclusive jurisdiction

over appeals from final state-court judgments.

. For that reason, under the Rooker-Feldman doctrine,

this court, like all lower federal courts, lacks jurisdiction to

consider claims brought by “state-court losers” that challenge

“state-court judgments” that were entered before the federal

case began. Exxon Mobil Corp. v. Saudi Basic Indus. Corp.¸ 544

1 The doctrine is derived from Rooker v. Fidelity Tr. Co.,

(1923), and District of Columbia Court of Appeals v. Feldman,

(1983).

, 284 (2005); Klimowicz v. Deutsche Bank Nat’l Tr. Co.,

(1st Cir. 2018). The doctrine applies when

the plaintiff seeks relief from an injury caused by a state

court judgment but does not apply when the plaintiff alleges a

different injury that is separate from the injury caused by a

state court judgment. Davison v. Gov’t of Puerto Rico-Puerto

Rico Firefighters Corps.,

(1st Cir. 2006).

In this case, Brochu alleges that the defendants’ orders

requiring him to pay child support, along with their actions

related to those orders, violated his Fourteenth Amendment

rights.2 He asks this court to issue a declaratory judgment and

an injunction to command the defendants not to preside in

matters involving him and not to issue orders that violate his

Fourteenth Amendment rights. Brochu alleges that a final order

was issued by the state court.3

The Rooker-Feldman doctrine applies, depriving this court

of jurisdiction, if the relief the plaintiff seeks would

effectively overturn the state court judgment. Maymo-Melendez

v. Alvarez-Ramirez,

(1st Cir. 2004). Brochu

2 To the extent that Brochu is challenging decisions made by the New Hampshire Judicial Conduct Committee, this court lacks jurisdiction to consider such claims.

3 Brochu’s request for an injunction seeking to restrain the defendants’ conduct going forward suggests that the child support proceeding may be subject to reopening.

6 alleges that the defendants violated his Fourteenth Amendment

rights during the child support proceedings and in issuing

orders that require him to pay child support although his

parental rights are terminated. He seeks an injunction to

prevent the defendants from presiding in matters involving him

and from issuing orders that violate his Fourteenth Amendment

rights.

For Brochu to succeed, the court necessarily would have to

find that the state court orders and/or the defendants’ alleged

actions that lead to the orders violated his Fourteenth

Amendment rights. As such, Brochu attacks the state court

orders, and the determination he seeks would overturn the state

court’s orders. The court lacks jurisdiction to conduct that

review and to grant the relief Brochu requests.

B. Abstention

To the extent that the state court proceeding involving

Brochu’s child support obligations has not concluded, the

injunctive relief he requests implicates the abstention doctrine

under Younger v. Harris,

(1971). Federal courts

will abstain from hearing cases “when the requested relief would

interfere (1) with an ongoing state judicial proceeding; (2)

that implicates an important state interest; and (3) that

provides an adequate opportunity for the federal plaintiff to

7 advance his federal constitutional challenge.” Rossi v. Gemma,

(1st Cir. 2007); see also Sirva Relocatoin,

LLC v. Richie,

(1st Cir. 2015). The Younger

abstention doctrine applies when a federal court plaintiff seeks

an injunction to coerce a state court to act in accordance with

his direction. Rossi,

.

The injunctive relief that Brochu seeks would directly

interfere with any ongoing state court child support proceedings

involving Brochu by precluding the defendants from presiding and

by directing certain limits on state court decisions. States

have important interests in enforcing the orders of their

courts. Sirva Relocation,

. Further, there can

be no question that issues of parental rights and child support

obligations implicate important state interests. Nicolosi v.

N.H. Supreme Court,

, at *4 (D.N.H. Nov. 13,

2019). Although Brochu alleges that he had difficulty filing an

appeal in state court, that appears to have been due to his own

procedural missteps and not because he was barred from raising

federal issues.

Therefore, to the extent Brochu is attempting to enjoin

ongoing state proceedings, the court would abstain from

considering his claims.

8 C. Merits of the Claims

Further, even if Brochu were able to overcome the hurdles

of the Rooker-Feldman doctrine and Younger abstention, his

complaint would be dismissed for failure to state a claim for

relief. To succeed on a procedural due process claim, a

plaintiff must allege facts that show that he was deprived of a

protected property interest without constitutionally adequate

process.4 Marrero-Guitierrez v. Molina,

(1st Cir.

2007). To establish an equal protection violation, a plaintiff

must allege facts that show he was treated differently based on

impermissible considerations. Clark v. Boscher,

(1st Cir. 2008).

With respect to the due process claim, based on Brochu’s

allegations, the disputed child support decisions were made

after he received constitutionally adequate process. He charges

that Referee Colligan spoke in an improper manner and that he

was “ordered to commit a criminal offense against his wife,” but

neither charge, as presented, supports a procedural due process

claim.5 Instead, Brochu really challenges the outcome of the

4 Because Brochu was not deprived of liberty or life, it appears that his due process claim is based on the loss of property through paying child support.

5 As is noted above, Brochu’s statement that he was ordered to commit a criminal offense against his wife is a legal conclusion without any supporting facts to show what he was

9 child support proceedings, apparently on the ground that he

should not have to pay child support after his parental rights

have been terminated.6 As provided above, the court lacks

jurisdiction to change the outcome of the state proceedings.

With respect to the equal protection claim, Brochu alleges

that he was ordered to pay child support, despite the

termination of his parental rights, because he is male. To the

extent he intended to bring an equal protection claim on that

theory, it is conclusory and insufficient. He provides no

supporting factual allegations to show that the child support

orders were based on his gender. Therefore, the claim fails.

D. Summary

This court lacks jurisdiction under the Rooker-Feldman

doctrine to consider Brochu’s claims. If that doctrine does not

apply here, the court would abstain from considering Brochu’s

claims under Younger. Further, Brochu’s allegations fail to

state a plausible claim. Therefore, Brochu’s complaint is

dismissed on preliminary review.

ordered to do. Therefore, that statement does not support his claim.

6 Brochu alleges that Judge Weaver issued the final child support order, but he provides no allegations of any infirmities in the process used to reach that decision.

10 Conclusion

For the foregoing reasons, the complaint (document no. 1)

is dismissed without prejudice.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge May 25, 2021

cc: Michael Brochu, pro se

11