United States District Court, D. New Hampshire
William Phillips, pro se
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge
plaintiff William Phillips, has filed addenda (Doc. Nos.
6, 8, 10, 11,
15) to his original complaint (Doc. No. 1),
in response to the court's May 9, 2018 Order (Doc. No.
5). The complaint and addenda are before the court
for preliminary review. See 28 U.S.C. §
1915(e)(2); LR 4.3(d)(2). Also before the court is a
motion for a preliminary injunction (Doc. No. 9),
which has been referred to the undersigned magistrate judge
for a report and recommendation. See Aug. 20, 2018
action relates to a state proceeding, In re Phillips
& Curtis, No. 226-2008-DM-01185 (N.H. Cir. Ct., 9th
Cir., Family Div., Merrimack) (“In re Phillips
& Curtis”), pending in family court in
Merrimack, New Hampshire (“Merrimack Family
Court”), in which plaintiff was found to be liable for
unpaid child support arrearages dating back to 2011/2012.
See Aug. 15, 2017 Order, In re Phillips &
Curtis (Doc. No. 6-1, at 24). In December 2016,
the New Hampshire Department of Health and Human Services
(“DHHS”) Division of Child Support Services
(“DCSS”) certified that the amount of unpaid
child support then exceeded $29, 500.00. See DHHS
DCSS Dec. 14, 2016 Ltr. to Lisa Curtis and Financial
Statement (Doc. No. 6-1, at 10, 11). Phillips
alleges here that a claim for $33, 000.00 in unpaid child
support was asserted against him in state court in 2017/2018.
asserts that he became disabled in 2011. The Disability
Determination Unit of the DHHS Division of Community Based
Care Services denied his application for assistance under the
Aid to the Permanently and Totally Disabled
(“APTD”) program in August 2011, see
Doc. No. 6-1, at 6, and sometime thereafter he began
to receive disability benefits from a private insurer.
Plaintiff asserts that beginning in 2011, DCSS garnished his
disability benefits to pay child support arrearages, and that
the garnishment ended when he began to receive Supplemental
Security Income (“SSI”) in late 2012.
2017, the mother of his children, Lisa Curtis, through
counsel, filed a motion in In re Phillips &
Curtis, seeking to have Phillips held in contempt of
court for failing to pay child support. Phillips asserts he
contacted the Merrimack Family Court in 2017, expecting that
the proceedings initiated by Curtis would be closed when he
provided proof to that court that he had been receiving SSI.
The court did not close the case, and, he asserts, a court
employee taunted him in the clerk's office by calling out
a question as to why he had not paid child support. After an
August 2017 hearing on the motion for contempt, the Merrimack
Family Court ordered Phillips to direct the private insurer
to pay $700 per month of his long term disability benefits to
Curtis's counsel, to pay off the arrearages. See
Aug. 15, 2017 Order, In re Phillips & Curtis
(Doc. No. 6-1, at 24). Phillips filed an appeal of
that order to the New Hampshire Supreme Court
(“NHSC”). The NHSC declined Phillips's appeal
in January 2018. See In re Phillips, No. 2017-0523
(N.H. Jan. 17, 2018) (Doc. No. 6-2, at 5).
through counsel, filed a renewed motion in In Re Phillips
& Curtis in 2018, seeking to have Phillips held in
contempt of court. The Merrimack Family Court has directed
Phillips to file documentation regarding his long-term
disability benefits and has scheduled a show cause hearing on
the motion for contempt for August 28, 2018.
asserts the following claims for relief here:
defendant state agencies violated Phillips's federal
rights, giving rise to liability under 42 U.S.C. § 1983,
A. denying him APTD benefits refused to him in 2011; and
B. garnishing Phillips's disability benefits from 2011
until he began to receive SSI.
Merrimack Family Court Clerk Lynn Killkelley violated
plaintiff's Fourteenth Amendment rights to due process
and equal protection in 2017, in that:
A. The court clerk failed to close Lisa Curtis's
proceedings against Phillips upon receiving proof in the
clerk's office that Phillips received SSI;
B. A clerk's office employee whited out a portion of
Judicial Referee Alice Love's August 9, 2017 recommended
order, after Phillips ...