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BK v. Toumpas

United States District Court, D. New Hampshire

November 14, 2012

BK
v.
Nicholas TOUMPAS et al.

Page 61

B.K., West Lebanon, NH, pro se.

Jeanne P. Herrick, NH Department of Justice, Nancy J. Smith, Office of Attorney General, Concord, NH, for Nicholas Toumpas et al.

SUMMARY ORDER

JOSEPH N. LAPLANTE, District Judge.

This case raises the important, and potentially difficult, issue of whether state authorities violate parents' free exercise rights by placing their children with foster families who subject children to practices at odds with their religious upbringing. Through the sole remaining claim, " BK," proceeding pro se as well as pseudonymously, seeks to recover monetary damages against the defendants (the director and several employees of the New Hampshire Department of Health and Human Services and its Division for Children, Youth, and Families) under 42 U.S.C. § 1983. He alleges that, after he temporarily lost custody over his three minor children, the defendants knowingly placed or left the children in the homes of foster families who served them beef and took them to Christian religious services— practices abhorrent to their upbringing in the Hindu faith. This court has jurisdiction under 28 U.S.C. § 1331 (federal question).

The defendants have moved for summary judgment. See Fed.R.Civ.P. 56. They argue that:

(1) any rational factfinder would have to conclude that, in handling the children's foster care placements, the defendants made " reasonable efforts" to ensure that BK's " religious preferences [were] respected," so that no Free Exercise violation occurred;
(2) in any event, they are entitled to qualified immunity, because no reasonable official in their position would have known he or she was violating the plaintiffs' clearly established free exercise rights;
(3) certain of the defendants were not personally involved in any deprivation of those rights, even if there was one, and
(4) BK has failed to respond to any of the defendants' discovery requests, including requests for admissions, see Fed.R.Civ.P. 36, warranting dismissal of his case as a sanction.

Because, for the reasons discussed infra, the court rules that the defendants are entitled to qualified immunity, it need not and does not reach their other arguments for summary judgment.

Procedural background

Before addressing the merits of the qualified immunity argument, however, the court pauses to review the complicated procedural travail of this case so as to make clear exactly what claims remain for disposition on summary judgment. The original complaint, consisting of seven separately numbered counts against eight separately named defendants, was filed by counsel on behalf of BK, and his then-wife " SK," both individually and in their capacity as guardians and next friends of their three minor children, " M," " K," and " B." After the defendants moved to dismiss the complaint in its entirety for failing to state a claim for relief, see Fed.R.Civ.P. 12(b)(6), the plaintiffs filed an amended complaint dropping one of the counts and modifying others. Neither the original nor the amended complaint made any claim against any of the foster parents.

Page 62

Before the court ruled on the motion to dismiss, counsel for the plaintiffs sought leave to withdraw from her representation of BK, stating that SK's seeking a legal separation from him created a conflict of interest for counsel. The plaintiffs also sought a stay of the action to enable BK to secure new counsel. This relief was granted without objection. After being advised that BK had traveled to India without leaving word as to whether he had found a lawyer to appear for him ...


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