Phillips v. NH Circuit Court, 8th Circuit, Family Division-Keene et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Matthew Phillips
v. 	Case No. 20-cv-1033-PB
New Hampshire Circuit Court, 8th Circuit,
Family Division-Keene; and New Hampshire
Administrative Office of the Courts
REPORT AND RECOMMENDATION
Plaintiff, Matthew Phillips, has filed a complaint in forma
pauperis, alleging that the defendant state court (“Keene
Court”) and the defendant New Hampshire Administrative Office of
the Courts violated his federal rights and engaged in tortious
conduct, in causing an unredacted recording of a sealed and
closed state court proceeding to be released, which disclosed
his testimony regarding his history of mental health issues.
The complaint is before this court for preliminary review,
pursuant to 28 U.S.C. § 1915(e)(2).
Background
Mr. Phillips alleges that prior to April 29, 2016, he
testified regarding his medical and mental health history in a
state court hearing that had been sealed and closed to the
public. 	See In re Phillips, No. 649-2014-DM-00397 (N.H. Cir.,
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8th Cir. Family Div.-Keene). 	After the hearing at issue ended,
an employee of that court’s clerk’s office mistakenly released
an unredacted audio recording of that proceeding to a third
party who requested it. 	Mr. Phillips’s testimony was
subsequently published on YouTube and became accessible through
a link on the Facebook page of an organization called “Stop Free
Keene.” 	Mr. Phillips filed a state court lawsuit to enjoin
further publication of that recording, naming the same two state
defendants as he did in this case, plus Stop Free Keene. 	See
Phillips v. Stop Free Keene, No. 213-2016-cv-00070 (N.H. Super.,
Hillsborough Cnty. S.D.) (“Stop Free Keene”). 	Mr. Phillips
obtained a preliminary injunction in that case (which he has
attached as an exhibit to the Complaint here), enjoining further
dissemination of the sealed portion of the state court record,
requiring Stop Free Keene to submit the original audio recording
and any copies of it to the Superior Court, and directing Stop
Free Keene and its members to remove pertinent links from
Facebook, Twitter, YouTube, and other websites. 	See Apr. 29,
2016 Order, id. (Doc. No. 1, at 7-9). 	The state court docket in
Stop Free Keene indicates that Mr. Phillips, through counsel,
moved voluntarily to dismiss that case, and the Superior Court
granted that motion on June 3, 2016, dismissing that case
without prejudice, with leave to refile. 	See June 3, 2016
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Order, Stop Free Keene (Index No. 16). 	While it is not clear
upon the record available to this court whether Mr. Phillips
took any steps thereafter to refile a similar state court case,
he has stated in his Complaint here that there is “no active
case on the state level anymore,” and that he “filed a dismissal
request in 2018 which was granted.” 	Compl. (Doc. No. 1), at 4.
Mr. Phillips further alleges, however, that clips of the audio
recording of the state court hearing remain available on YouTube
through “multiple false accounts.” 	Id.
In the Complaint here, Mr. Phillips asserts claims for
damages and injunctive relief. 	Specifically, he seeks an order
restraining all Keene Court “family or civil matters for the
duration of this case.” 	Compl. (Doc. No. 1), at 4. 	Liberally
construed, his claims are asserted under 42 U.S.C. § 1983; the
Fourteenth Amendment; the Privacy Rule (45 C.F.R. Pt. 160, 45
C.F.R. Pt. 164, Subpts. A & E) under the Health Insurance
Portability and Accountability Act (“HIPAA”), 42 U.S.C. §§ 1320d
to 1320d-9; and state tort law.
Discussion
I. 	Preliminary Review
A. 	Standard
In determining whether a pro se complaint states a claim,
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the court construes the complaint liberally. 	See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). 	Disregarding any legal
conclusions, the court considers whether the factual content in
the complaint 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, 678 (2009)).
B. 	Eleventh Amendment
The Eleventh Amendment provides a state immunity from
“any suit in law or equity, commenced or prosecuted
. . . by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” 	It is now well
established that such immunity also applies to suits
brought by a state’s own citizens.
Sinapi v. R.I. Bd. of Bar Exam’rs, 910 F.3d 544, 553 (1st Cir.
2018) (citations omitted). 	The two defendants in this case are
state agencies, not individual state officers. 	See Mabardy v.
Grafton Cnty., No. 19-CV-223-PB, 2019 WL 6879365, at *9, 2019
U.S. Dist. LEXIS 217065, at *25 (D.N.H. Nov. 22, 2019) (“A state
court is treated like a state for purposes of the Eleventh
Amendment.”), R&R adopted, 2019 WL 6879213, 2019 U.S. Dist.
LEXIS 216556 (D.N.H. Dec. 17, 2019). 	No exception to the
Eleventh Amendment’s bar on claims against a state appears
applicable here. 	Cf. Va. Office for Prot. & Advocacy v.
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Stewart, 563 U.S. 247, 253–54 (2011) (discussing Eleventh
Amendment exceptions). 	Accordingly, all of the claims asserted
against the defendants in this action should be dismissed as
barred by the Eleventh Amendment.
C. 	HIPAA Privacy Rule
Furthermore, even if there were individual state actors
named as defendants here, neither HIPAA nor the HIPAA Privacy
Rule provides Mr. Phillips with a private right of action for
damages or injunctive relief. 	See Miller v. Nichols, 586 F.3d
53, 59 (1st Cir. 2009). 	Accordingly, an additional ground for
dismissing the HIPAA claims in this case arises from the absence
of a private right of action for such claims.
D. 	42 U.S.C. § 1983 and the Fourteenth Amendment
An independent ground for dismissing the claims asserted
under section 1983 and the Fourteenth Amendment is Mr.
Phillips’s failure to state a claim. 	To state a constitutional
tort or other civil rights claim upon which relief can be
granted pursuant to 42 U.S.C. § 1983, the plaintiff must allege
facts showing that the defendant possessed a purposeful,
knowing, or reckless state of mind, as “‘liability for
negligently inflicted harm is categorically beneath the
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threshold of constitutional due process.’” 	Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2472 (2015) (emphasis in original,
citation omitted). 	Mr. Phillips has specifically pleaded that
the state court employee’s release of the unredacted recording
was a mistake. 	The complaint here fails to assert facts
alleging any acts or omissions of the defendants more culpable
than negligence. 	For that reason, Mr. Phillips has failed to
state a claim under § 1983 upon which relief can be granted for
any violations of his rights under the Fourteenth Amendment.
E. 	Tort Claims
Mr. Phillips has asserted that he intends to plead tort
claims. 	As there is no federal law of tort that could provide a
cause of action for such claims, see Erie R.R. v. Tompkins, 304
U.S. 64, 78 (1938), the court would necessarily look to state
tort law to provide a rule of decision. 	Even if the court were
to conclude that the negligence claims pleaded by Mr. Phillips
survived the Eleventh Amendment, such claims would be properly
dismissed pursuant to 28 U.S.C. § 1367(c), as Mr. Phillips has
failed to state any viable federal claims for relief upon which
the court’s original jurisdiction may be based.
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II. 	Injunctive Relief
“‘A plaintiff seeking a preliminary injunction must
establish that [s]he is likely to succeed on the merits, that
[s]he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in [her]
favor, and that an injunction is in the public interest.’”
Glossip v. Gross, 135 S. Ct. 2726, 2736 (2015) (citation
omitted). 	The likelihood of success and irreparable harm are
the factors that weigh most heavily in the analysis. 	See Esso
Std. Oil Co. v. Monroig–Zayas, 445 F.3d 13, 18 (1st Cir. 2006);
see also Voice of the Arab World, Inc. v. MDTV Med. News Now,
Inc., 645 F.3d 26, 32 (1st Cir. 2011). 	The burden of proof is
on the movant. 	See Esso Std. Oil Co., 445 F.3d at 18.
Mr. Phillips seeks preliminary injunctive relief, directing
defendants to stop conducting family court and civil proceedings
while this action is pending. 	Such relief is not available,
however, as Mr. Phillips has failed to plead facts demonstrating
he is likely to succeed on the merits of his claims in this
case, and he has failed to show that irreparable harm will occur
unless such relief is granted. 	Accordingly, his request for a
restraining order or other preliminary injunctive relief set
forth in the Complaint should be denied.
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Conclusion
For the foregoing reasons, the district judge should
dismiss all of the claims in this case, deny Mr. Phillips’s
request for a restraining order or other injunctive relief,
enter judgment, and direct that this case be closed. 	Any
objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The fourteen-day period may be extended upon
motion. 	Failure to file objections within the specified time
waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
January 14, 2021
cc: 	Matthew Phillips, pro se
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