United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE.
Melissa Thibodeau has filed a complaint (Doc. No. 1)
challenging a state court child custody order concerning her
son. Because Thibodeau is proceeding in this matter in forma
pauperis, the complaint is before the court for preliminary
review, pursuant to 28 U.S.C. § 1915(e)(2) and LR
determining whether a pro se pleading states a claim, the
court construes the pleading liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Disregarding any legal
conclusions, the court considers whether the factual content
in the pleading and inferences reasonably drawn therefrom,
taken as true, state a facially plausible claim to relief.
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st
Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662,
and William Mark Pipkin shared equal custody of their son,
R.P., until November 2017, pursuant to a custody order issued
in In re Pipkin and Tilton/Thibodeau, No.
627-2005-DM-00262, N.H. 5th Cir. Ct., Fam. Div.Clarement
(“Clarement Family Court”). Thibodeau asserts
that twice in October 2017, Pipkin threatened not to return
R.P. to Thibodeau as required by the then-existing custody
order. Both times, Thibodeau sought ex parte relief in the
Claremont Family Court. Both times, Claremont Family Court
Judge John Yazinski ordered Pipkin to comply with the
existing custody order.
alleges that shortly thereafter, Pipkin “stole”
R.P. and refused to return him to Thibodeau's custody.
Pipkin then sought primary custody of R.P. in the Claremont
Family Court, and a hearing on that request was scheduled in
November 2017. Thibodeau asserts that, in connection with
that hearing, Pipkin filed paperwork in the court containing
false statements designed to influence the court to grant
Pipkin custody. As a result of Pipkin's false statements,
Thibodeau claims that Judge Yazinski improperly awarded
Pipkin primary custody of R.P. without first proving that
Thibodeau was an unfit parent.
now asserts that Judge Yazinski violated her rights in the
child custody proceedings by removing R.P. from her custody
in the absence of proof that Thibodeau had abused or
neglected R.P., refusing to recuse himself from her custody
case despite his demonstrated bias against Thibodeau, and
ordering Thibodeau to pay $1000 for the cost of a guardian ad
litem for R.P., knowing she lives on social security
insurance benefits. Thibodeau also asserts claims alleging
that Pipkin caused her to wrongly be deprived of custody of
R.P., and improperly obtained primary custody of R.P., by
making false statements during the Claremont Family Court
proceedings. Thibodeau seeks damages from Judge Yazinski, and
an order from this court: prohibiting Judge Yazinski from
presiding over any case in any court in the future, vacating
Judge Yazinski's orders and granting Thibodeau full
custody of R.P., transferring the child custody matter to
this court, and fining Pipkin for lying in the child custody
Claims Against Judge Yazinski
have “absolute immunity from civil liability for any
normal and routine judicial act.” Cok v.
Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (citing
Stump v. Sparkman, 435 U.S. 349, 356- 57 (1978)).
“[Judicial] immunity applies no matter how erroneous
the act may have been, how injurious its consequences, how
informal the proceeding, or how malicious the motive. Only
judicial actions taken in the clear absence of all
jurisdiction will deprive a judge of absolute
immunity.” Cok, 876 F.2d at 2 (citations
custody determinations are “normal and routine”
judicial acts. Further, even accepting as true, for purposes
of preliminary review, Thibodeau's assertions that Judge
Yazinski erred in relying on Pipkin's false statements,
and exhibited bias against Thibodeau, she has not alleged
alleged any facts indicating that Judge Yazinski acted
“in the clear absence of all jurisdiction.”
Cok, 876 F.2d at 2. Accordingly, Judge Yazinski is
entitled to judicial immunity from plaintiff's claims for
damages, and the district judge should dismiss those claims
against Judge Yazinski on that basis.
extent plaintiff asserts claims for injunctive relief under
42 U.S.C. § 1983 against Judge Yazinski, that statute
bars claims asserted against judges for actions taken in
their judicial capacity, like those asserted here,
“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 violated, or that declaratory
relief has been unavailable. See Adames v. Fagundo,
198 Fed.Appx. 20, 22 (1st Cir. 2006). Accordingly, the
injunctive relief claims asserted under § 1983 against
Judge Yazinski should be dismissed.
Claims Against ...