Malachowski v. City of Keene

Decision Date28 March 1986
Docket NumberNo. 85-1583,85-1583
Citation787 F.2d 704
PartiesHenry MALACHOWSKI and Julia Malachowski, Plaintiffs, Appellants, v. CITY OF KEENE, et al., Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

Henry Malachowski and Julia Malachowski, on brief, pro se.

John P. Shea and Elizabeth Cazden, Manchester, N.H., on brief, for defendant, appellee City of Keene.

Martha V. Gordon and Devine, Millimet, Stahl & Branch, Professional Ass'n, Manchester, N.H., on brief, for defendant, appellee Youth Services, Inc.

Loretta S. Platt, Asst. Atty. Gen., and Stephen E. Merrill, Atty. Gen., Concord, N.H., on brief, for defendants, appellees Judge Bernard J. Hampsey, Jr. and Judge Richard J. Talbot.

Richard C. Gagliuso, Linda S. Letheren, and Hamblett & Kerrigan, P.A., Nashua, N.H., on brief, for defendant, appellee David S. Park.

Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit Judges.


This is an appeal brought by plaintiffs-appellants Henry and Julia Malachowski, proceeding pro se, from orders of the United States District Court for the District of New Hampshire dismissing appellants' claims under 42 U.S.C. Sec. 1983 for injunctive relief and damages against ten defendants-appellees. Appellants' complaint alleged that their federal constitutional rights had been violated in the course of juvenile delinquency proceedings in the Keene, New Hampshire District Court against their daughter, Amy, which resulted in Amy's release into foster care outside appellants' custody. We affirm the district court's dismissal.


Amy initially was placed in foster care on January 24, 1984, pursuant to a consent order entered as a result of a petition alleging abuse and/or neglect of Amy filed in Keene District Court by the New Hampshire Division of Welfare. Amy was returned to appellants' custody on April 12, 1984. On August 3, 1984, Mrs. Malachowski called the Keene police to report that Amy, then sixteen years old, had run away. Mr. Malachowski located her at a friend's house and brought her home. When Patrolman LaCoste arrived at the Malachowski residence in response to Mrs. Malachowski's call, he knocked on the door and Mrs. Malachowski opened it. Through the open door he saw and heard--taking the facts as alleged by appellants--Amy throwing a "tantrum" and directing abusive language at Mr. Malachowski (appellants deny that Amy struck him). LaCoste then entered the house, allegedly without appellants' permission, and took Amy into custody.

The Keene police then contacted Judge Bernard Hampsey and obtained authorization to hold Amy overnight pending arraignment. The next morning, August 4, Amy was arraigned in Keene District Court on a juvenile delinquency petition, signed by Sergeant Brown, juvenile officer in the Keene Police Department, alleging disorderly conduct and that Amy struck Mr. Malachowski. Appellants were not present at the arraignment and allegedly were notified of it only by a phone call from Sergeant Brown ten minutes before it began. At the arraignment attorney David Park, who had been Amy's guardian ad litem in the earlier abuse and neglect proceeding, was appointed to represent her. Amy allegedly told him she did not want to return to her parents, and he agreed to a court order that she be temporarily detained in the Youth Development Center pending an adjudicatory hearing. At the adjudicatory hearing, held on September 11, 1984, with appellants present and Judge Richard J. Talbot presiding, Amy pleaded "chargeable" to the juvenile delinquency petition. The court ordered her temporarily placed in foster care with Youth Services, Inc. ("Y.S.I.") pending the dispositional hearing. At the dispositional hearing, held on October 11, 1984, with appellants present, the court ordered that Amy remain in the custody of Y.S.I., ordered family counselling, and scheduled a review for December 27, 1984.

Neither Amy nor appellants on her behalf filed an appeal from this dispositional order pursuant to N.H.R.S.A. 169-B:29. Nor did appellants petition the New Hampshire Supreme Court for a writ of certiorari to challenge it. See N.H.R.S.A. 490:4. Instead, on November 1, 1984, appellants brought the instant federal court action under Sec. 1983, not on behalf of Amy but seeking redress for alleged violations of their own constitutional rights. Named as defendants--and appearing as appellees herein--were New Hampshire District Court Judges Hampsey and Talbot, Y.S.I. and its employee Richard Archibald, attorney David Park, the City of Keene and its Police Department, the city's prosecuting attorney Mark Bennett, Sergeant Brown, and Patrolman LaCoste.

In addition to various allegations directed at particular defendants, each of which we will discuss in turn below, appellants also attacked the legality of the Keene District Court proceedings themselves. Their primary allegations, insofar as they can be discerned from appellants' murky complaint, are that they were not given adequate notice of Amy's arraignment; they were not given notice until October 4, 1984, of the contents of the delinquency petition filed against Amy, in violation of N.H.R.S.A. 169-B:7 and In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); they were deprived of, and not given adequate notice of, their right to retain counsel for Amy; they were not given a copy of Y.S.I. recommendations concerning Amy's custody before or during the dispositional hearing; they were not permitted access to the court records pertaining to Amy's case, in violation of N.H.R.S.A. 169-B:35; Amy was removed from their custody even though she was never actually adjudicated a delinquent, but pleaded "chargeable"; a finding of delinquency for use of foul language violated the First Amendment; and appellees acted with malicious intent pursuant to a conspiracy to manipulate the Keene District Court proceedings to deprive appellants of Amy's custody. The complaint sought compensatory and punitive damages against all defendants and also requested injunctive relief restoring Amy to appellants' custody, ordering that all juvenile delinquency charges against Amy be dropped, and barring any further attempts to interfere with appellants' custody.

Appellant Henry Malachowski then also filed on November 30, 1984, a petition for a writ of habeas corpus in the New Hampshire Supreme Court seeking to regain custody of Amy. The Supreme Court dismissed the petition without prejudice to appellant refiling it in the superior court, which apparently he has not done. A Keene District Court hearing to review Amy's disposition was held on December 27, 1984, with appellants present, but the court had not rendered a decision prior to the intervention of the district court below in the instant action.

On January 4, 1985, the district court (Loughlin, J.), following a January 2 hearing on pending motions, issued an order that Amy be restored to appellants' custody. Appellees Judges Hampsey and Talbot moved for a stay of this order, asking that Amy first be consulted. The district court granted the stay and, on January 8, granted appellees Judges Hampsey and Talbot's motion to dismiss all damage claims on grounds of judicial immunity; denied their motion as to appellants' claims for injunctive relief; granted appellee Y.S.I.'s motion to dismiss for lack of state action; and dismissed appellee Richard Archibald for lack of service. On January 10, the district court interviewed Amy in chambers and, after finding that it would be detrimental to her well-being to be returned to appellants' custody, ruled on January 11 that it lacked subject matter jurisdiction and "remanded" the case to the Keene District court. Judgment was entered.

Subsequently, following numerous additional filings by appellants, the district court on February 5 further ordered that custody of Amy would be restored to appellants unless the Keene District Court held a hearing on or before February 15. That hearing was held on February 13, with appellants present, and resulted in an order by Judge Talbot continuing custody with Y.S.I. until June 30, 1985, with appellants to regain custody at that time unless Amy first requested a hearing. On March 26, 1985, the district court granted appellee Park's motion to dismiss and motion for summary judgment. Appellants then filed a notice of appeal in this court, which was dismissed as premature on May 14, 1985, because the case had not been finally resolved as to all parties. The district court then ruled on June 11 that "[a]ll of plaintiffs' actions not heretofore disposed of are dismissed because this court finds that it does not have jurisdiction." Appellants appealed. Appellants then also filed, on June 26, 1985, an appeal in the Cheshire County, New Hampshire Superior Court, which was dismissed as untimely.


Appellants' complaint prayed for the following injunctive relief: a permanent injunction restoring Amy to appellants' custody; withdrawal of the juvenile delinquency charges against Amy; and a permanent injunction barring appellees from future interference with appellants' custody of Amy. We interpret the district court's January 11 dismissal of these claims for lack of jurisdiction as a decision to abstain on the injunctive aspects of the case. We affirm.

As an initial matter, it appears that, so far as can be discerned from appellants' complaint, most, if not all, of appellants' objections to the Keene District Court proceedings involve alleged violations of New Hampshire law. These alleged faults in the state proceedings do not rise to the level of federal constitutional violations, actionable under Sec. 1983. Mere alleged misuse or disregard of state law by state officials does not constitute a deprivation of property without constitutional due process of law. See Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79...

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    • July 20, 2011 claims for injunctive or declaratory relief, over a matter that is the subject of pending state criminal proceedings.” Malachowski v. City of Keene, 787 F.2d at 708 (holding that Younger principles applied to federal court action brought by parents under § 1983 for alleged violation of t......
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