Katz v. McVeigh

Decision Date15 March 2013
Docket NumberCivil No. 10–cv–410–JL.
Citation931 F.Supp.2d 311
PartiesElena KATZ et al. v. Brian McVEIGH et al.
CourtU.S. District Court — District of New Hampshire


Elena Katz, East Hampstead, NH, pro se.

Arnold Grodman, East Hampstead, NH, pro se.

Stuart Grodman, East Boston, MA, pro se.

Rebecca L. Woodard, Nancy J. Smith, NH Attorney General's Office, Charles P. Bauer, Gallagher Callahan & Gartrell PC, Corey M. Belobrow, Maggiotto & Belobrow PLLC, Adam B. Pignatelli, Rath Young & Pignatelli PA, Biron L. Bedard, Ransmeier & Spellman, Concord, NH, Brian J.S. Cullen, CullenCollimore PLLC, Michael A. Pignatelli, Rath Young & Pignatelli PC, Nashua, NH, W. Daniel Deane, Nixon Peabody LLP, Manchester, NH, Julie Ciollo, Michelle Hinkley, Raquel J. Webster, City of Boston, Law Department, Boston, MA, for Brian McVeigh et al.


JOSEPH N. LAPLANTE, District Judge.

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 28 U.S.C. §§ 1331 (federal question) and 1367 (supplemental jurisdiction), except to the extent that the plaintiffs' claims 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, seeFed.R.Civ.P. 12(b)(6), or for judgment on the pleadings, seeFed.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 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 enforcementofficers (e.g., for allegedly 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, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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 plaintiff's favor. See, e.g., Martino v. Forward Air, Inc., 609 F.3d 1, 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–Burset, 640 F.3d 1, 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., 589 F.3d 30, 35 (1st Cir.2009) (quotation marks omitted). This includes matters of public record, such as “documents from prior state court adjudications.” Giragosian v. Ryan, 547 F.3d 59, 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. 2See id. To the extent the plaintiffs' allegations of what happened in those proceedings are at odds with the records, moreover, the court is not required to accept the plaintiffs' version. See Rederford, 589 F.3d at 35 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, 630 F.3d 75, 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., 162 N.H. 520, 523–24, 34 A.3d 632 (2011).

At a minimum, then, the plaintiffs are collaterally estopped from relitigating the Family Division's decision granting DCYF 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, seeN.H.Rev.Stat. Ann. § 463:8, III(a), (2) resolved that issue on the merits, and finally, see id. § 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.

II. Background5A. Factual history1. 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...

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