United States District Court, D. New Hampshire
James Edward Rose, Jr.
Governor, State of New Hampshire, et al.
REPORT AND RECOMMENDATION
K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE.
James Edward Rose, Jr.'s complaint (Doc. No. 1) is before
the court for preliminary review, pursuant to 28 U.S.C.
§ 1915(e)(2) and LR 4.3(d)(2). Also before the court are
nine motions containing factual allegations explaining
matters in the complaint, which this court considers in its
preliminary review. See Doc. Nos. 3, 4, 5, 6, 7, 8, 9, 10,
alleges that in June 1973, his then wife Donna gave birth to
Rose's son Jamey. Rose asserts he did not know about
Jamey's birth, as he and Donna were separated at the
time, and Rose was incarcerated in California for some of
that period. He alleges that Donna had told him at some time
during the course of their divorce in 1980 that she had
“miscarried, ” that the son had been stillborn,
or that she had “lost” the child.
asserts that Donna abandoned Jamey when he was an infant, and
that Jamey lived in foster homes until he was three, when
Alan and Beverly Kidder adopted him. Rose, who asserts he was
not aware of Jamey's existence, was not aware of
Jamey's placements in foster homes or of his adoption by
to the complaint is a March 28, 1974 Order of a state court
in New Hampshire, finding that Jamey had been neglected and
granting the Hillsborough County Department of Public Welfare
temporary custody. See Doc. No. 1-4, at 5. That Order lists
Jamey's “mother” and “father”
among the parties present before the court but does not
identify those individuals by name. See Doc. No. 1-4, at 5.
Rose believes an imposter claiming to be Rose appeared in
court as Jamey's father when Rose's parental rights
were terminated. Rose asserts that he received records of the
adoption for the first time in February 2019, from an
claims that the adoption was “void ab initio”
because Rose received no notice of the hearing at which his
parental rights were terminated, and he did not consent to
the adoption. Rose asserts that State of New Hampshire,
Hillsborough County, and City of Manchester agents named as
defendants, the Kidders, and Donna conspired together to
violate his federal rights with regard to the termination of
Rose's parental rights. Rose, who is African American,
asserts that racist attitudes affected Jamey's situation,
and resulted in the lack of notice provided to Rose regarding
the state court proceedings. Rose seeks damages.
court conducts a preliminary review of complaints filed in
forma pauperis before defendants are served with process. See
28 U.S.C. § 1915(e)(2); LR 4.3(d)(2). Claims may be
dismissed sua sponte if, among other things, the complaint
fails to state a claim upon which relief may be granted, the
court lacks jurisdiction, or a defendant is immune from the
relief sought. See 28 U.S.C. § 1915(e)(2). To determine
whether to dismiss claims for failure to state a claim, the
court takes as true the factual content in the complaint and
inferences reasonably drawn from those facts, strips away the
legal conclusions, and considers whether plaintiff has stated
a claim that is plausible on its face. Hernandez-Cuevas
v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 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).
Dismissing an action based on an affirmative defense upon
preliminary review is permissible if the facts alleged in the
complaint, or matters susceptible of judicial notice,
conclusively establish the elements of the affirmative
defense. See Gray v. Evercore Restructuring LLC, 544
F.3d 320, 324 (1st Cir. 2008).
liberally, the complaint asserts the following claims:
1. State actors acting in concert with private parties
terminated Rose's parental rights without providing
plaintiff with prior notice and an opportunity to be heard,
in violation of his Fourteenth Amendment due process rights.
2. Defendants violated plaintiff's rights under the
First, Fourth, Fifth, Sixth, and Eighth Amendments.
3. Defendants engaged in criminal conduct in connection with
Jamey's foster care placements, adoption, and the
termination of ...