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Rose v. Governor

United States District Court, D. New Hampshire

July 12, 2019

James Edward Rose, Jr.
v.
Governor, State of New Hampshire, et al.[1]

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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, 11.

         Background

         Rose 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.

         Rose 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 the Kidders.

         Attached 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 anonymous source.

         Rose 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.

         Preliminary Review Standard

         This 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).

         Claims

         Construed 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 ...

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