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Joseph Puiia, Jr. v. Philip Cross et al.

August 8, 2012


The opinion of the court was delivered by: Paul Barbadoro United States District Judge

Opinion No. 2011 DNH 135


Joseph Puiia, Jr. brings suit against Marital Master Philip Cross and Judge Lucinda Sadler of the New Hampshire Superior Court Family Division, as well as Barbara Salvo-Wallack, who served as the guardian ad litem in custody proceedings involving two of Puiia's grandchildren. Puiia's suit arises out of the family court proceedings that led to the suspension of his previously granted grandparent visitation rights. He seeks monetary and injunctive relief under 42 U.S.C. § 1983 based on alleged violations of his substantive and procedural due process rights. He also asserts a conspiracy claim and two state law claims. Defendants move to dismiss all claims. For the reasons set forth below, I grant their motions to dismiss Puiia's federal claims, and decline to exercise supplemental jurisdiction over his remaining state law claims.


In September 2008, Puiia was granted status as an intervenor in custody proceedings involving two of his grandchildren. A family court judge subsequently issued an order granting him visitation rights.

At an ex parte hearing held before Master Cross in February 2009, Salvo-Wallack, in her function as the guardian ad litem, recommended that Puiia's visitation rights be suspended. Puiia alleges that she made her recommendation without having properly investigated the matter. Although he was present at the hearing, Puiia was not given an opportunity to address the court, provide counter evidence, cross-examine witnesses, or sit at the litigants' table. Master Cross adopted Salvo-Wallack's recommendation and Judge Sadler approved the order suspending Puiia's visitation rights. Since then, Puiia has not been allowed any contact with his grandchildren.


To survive a motion to dismiss under Rule 12(b)(6), plaintiff must make factual allegations sufficient to state a claim to relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible when it pleads "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citations omitted).

In deciding a motion to dismiss, I must employ a two-pronged approach. See Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). First, I must screen the complaint for statements that "merely offer legal conclusions couched as fact or threadbare recitals of the elements of a cause of action." Id. (citations, internal quotation marks, and alterations omitted). A claim consisting of little more than "allegations that merely parrot the elements of the cause of action" may be dismissed. Id. Second, I must credit as true all non-conclusory factual allegations and the reasonable inferences drawn from those allegations, and then determine if the claim is plausible. Id. The plausibility requirement "simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence" of illegal conduct. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). The "make-or-break standard" is that those allegations and inferences, taken as true, "must state a plausible, not a merely conceivable, case for relief." Sepulveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010); see Twombly, 550 U.S. at 555 ("Factual allegations must be enough to raise a right to relief above the speculative level . . . ." (citation omitted)).


Puiia asserts Section 1983 claims for alleged violations of his due process rights, seeking money damages and injunctive relief. He also alleges that defendants conspired to deprive him of his constitutional rights. I address each claim in turn.

A. Claims for Money Damages

First, with respect to Puiia's Section 1983 claims for damages against Master Cross and Judge Sadler in their official capacities, I note that "it is well settled 'that neither a state agency nor a state official acting in his official capacity may be sued for damages in a section 1983 action.'" Wang v. N.H. Bd. of Registration in Med., 55 F.3d 698, 700 (1st Cir. 1995) (quoting Johnson v. Rodriguez, 943 F.2d 104, 108 (1st Cir. 1991)). Accordingly, I dismiss those claims.

Second, all three defendants enjoy absolute immunity from Section 1983 claims that seek to hold them personally liable. Judge Sadler is entitled to absolute judicial immunity from civil liability "for any normal and routine judicial act . . . no matter how erroneous the act may have been, how injurious its consequences, how informal the proceeding, or how malicious the motive." Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989). The only action attributable to Judge Sadler is her approval of Master Cross's order suspending Puiia's visitation rights. Approval of such orders is clearly a routine judicial act ...

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