United States District Court, D. New Hampshire
Estabrook, pro se
REPORT AND RECOMMENDATION
JOHNSTONE UNITED STATES MAGISTRATE JUDGE
the court is plaintiff Thomas Estabrook's complaint (Doc.
No. 1), naming the State of New Hampshire and/or Merrimack
County Superior Court as the defendant(s), and seeking an
order: (1) vacating a 2016 ruling of the Merrimack County
Superior Court in his habeas corpus proceedings before that
court; (2) vacating Estabrook's 2009 state criminal
conviction, and/or allowing him to withdraw his guilty pleas
to felony and misdemeanor sexual assault charges; and (3)
granting him a new trial in that criminal case. The matter is
here for preliminary review under LR 4.3(d)(1) and 28 U.S.C.
court may dismiss claims asserted in a complaint filed in
forma pauperis, if the court lacks subject matter
jurisdiction, a defendant is immune from the relief sought,
the complaint fails to state a claim, or the action is
frivolous or malicious. See 28 U.S.C. § 1915(e)(2); LR
4.3(d)(1). In determining whether a pro se complaint states a
claim, the court must construe the complaint liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). To survive preliminary review, the complaint must
contain “sufficient factual matter, accepted as true,
to ‘state a claim to relief.'” See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation
omitted). The court treats as true all well-pleaded factual
allegations, and construes reasonable inferences in
plaintiff's favor. See Ocasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
January 14, 2009, Estabrook pleaded guilty to one count of
aggravated felonious sexual assault and a misdemeanor charge
of sexual assault, upon the advice of his retained trial
counsel. The judge sentenced Estabrook to three to eight
years in prison, stand committed, on the felony charge, and
one year in jail on the misdemeanor charge, to be served
concurrently with the felony prison term. Estabrook asserts
that his trial counsel billed him $25, 000 for services
provided in connection with that case.
litigated a series of state and federal post-conviction
proceedings while incarcerated, all of which were
unsuccessful, including a state habeas petition, a state
motion for sentence reduction, a state motion to withdraw his
guilty plea, and a federal petition for a writ of habeas
corpus under 28 U.S.C. § 2254. See, e.g., Estabrook
v. Zenk, No. 217-2016-cv-392 (N.H. Super. Ct.,
Rockingham Cnty., Nov. 10, 2016) (Doc. No. 1-1, at 9) (denial
of state habeas petition); State v.
Estabrook, No. 211-2008-cr-00253, No.
211-2008-cr-00366 (“State Criminal Case”) (N.H.
Super. Ct., Belknap Cnty. Apr. 4, 2016) (order denying motion
for sentence reduction); State Criminal Case (N.H. Super.
Ct., Belknap Cnty. July 16, 2010) (denial of motion to
withdraw plea); see also Estabrook v. N.H. State Prison
Warden, No. 1:11-cv-00096-JL (“§ 2254
Petition”) (D.N.H. Nov. 7, 2011) (ECF No. 6) (dismissal
of § 2254 Petition).
served his full eight year sentence, and was released in
2017. Estabrook asserts that he is presently subject to a
post-conviction sex-offender registry requirement, and has
been on probation while in Connecticut, where he presently
lives. It is not clear to this court whether that probation
is part of a sentence for the conviction underlying this
action, or another conviction not at issue in this case.
claims that his state conviction and sentence violated his
Sixth Amendment right to the effective assistance of trial
counsel, and his Fourteenth Amendment right to due process.
Estabrook further asserts that his trial counsel billed him
$25, 000 for services that he did not provide, which
Estabrook calls “theft by deception.” Doc. No. 1,
at 13. Estabrook seeks injunctive relief consisting of orders
vacating the 2016 order denying his state habeas petition;
vacating his 2009 conviction and/or allowing him to withdraw
his guilty plea; and granting him a new trial based on what
Estabrook characterizes as “new evidence.”
appears that Estabrook intends to invoke this court's
original jurisdiction over federal civil rights actions,
pursuant to 28 U.S.C. §§ 1331 & 1343, with
respect to his claims alleging that his Sixth Amendment right
to the effective assistance of trial counsel and his
Fourteenth Amendment due process rights were violated in his
state criminal case.Estabrook named as defendants to these
claims the State of New Hampshire and/or Merrimack County
Superior Court. The Eleventh Amendment, however, bars this
court from hearing claims for damages and injunctive relief
asserted against the state and a state court. See Town of
Barnstable v. O'Connor, 786 F.3d 130, 138 (1st Cir.
2015). Accordingly, the defendants named by Estabrook -- the
State of New Hampshire and/or Merrimack County Superior Court
-- are shielded from suit in this court by the Eleventh
Amendment. The district judge should dismiss Estabrook's
claims to the extent he has named only the State and/or
Merrimack County Superior Court as defendants, without
prejudice to Estabrook's ability to file a new lawsuit,
naming appropriate defendants who are not immune from his
extent Estabrook is seeking to sue any judge sitting in the
Merrimack County Superior Court, this court notes that judges
are entitled to absolute immunity from claims for damages for
their judicial acts, Cok v. Cosentino,876 F.2d 1, 2
(1st Cir. 1989), including the rulings at issue in this case.
In addition, § 1983 bars claims for injunctive relief
asserted against judges for actions taken in their judicial
capacity, “unless a declaratory decree was violated or
declaratory relief was unavailable.” 42 U.S.C. §
1983. There is no suggestion in the pleadings that a
declaratory decree has been ...