Graham v. NH, State of et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Melvin Graham
v. Civil No. 17-cv-154-JL
State of New Hampshire,
N.H. Supreme Court, Steven Keable,
Joseph Malfitani, and Barbara Bradshaw
REPORT AND RECOMMENDATION
Before the court is Melvin Graham’s complaint (Doc. No. 1),
and factual allegations in Graham’s discovery motion (Doc. No.
3), which has been construed as an addendum to the complaint.1
The matter is before the court for preliminary review under 28
U.S.C. § 1915A, 28 U.S.C. § 1915(e)(2), and LR 4.3(d)(1).
Preliminary Review Standard
The magistrate judge in this court conducts a preliminary
review of prisoner complaints filed in forma pauperis. See LR
4.3(d)(1). The magistrate judge may recommend to the district
judge that claims be dismissed if, among other things, the court
1The court’s Order issued this date has denied, without
prejudice, Graham’s discovery motion (Doc. No. 3), to the extent
he seeks a court-ordered physical examination under Fed. R. Civ.
P. 35 (Doc. No. 3). The denial of the motion is without
prejudice to Graham’s ability to refile a similar motion if the
case is allowed to proceed after the completion of the
preliminary review of Graham’s pleadings.
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lacks jurisdiction, a defendant is immune from the relief
sought, or the complaint fails to state a claim upon which
relief may be granted. See 28 U.S.C. §§ 1915(e)(2),
1915A(b)(1); LR 4.3(d)(1)(A). In conducting its preliminary
review, the court construes pro se complaints liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). The
complaint must contain “sufficient factual matter, accepted as
true, to ‘state a claim to relief.’” See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citation omitted).
Background
Since his conviction in 1996 on multiple counts of
felonious and aggravated felonious sexual assault, Graham has
filed a number of state and federal cases challenging that
conviction. The court in Graham v. Warden, No. 12-CV-271-JD
(D.N.H.), summarized the proceedings that had occurred prior to
December 2012:
Graham was convicted in 1996 on three counts of aggravated
felonious sexual assault and one count of felonious sexual
assault on his niece, who was eight years old at the time
of the assaults. State v. Graham, 142 N.H. 357, 359
(1997). On appeal, the New Hampshire Supreme Court
[“NHSC”] rejected Graham’s claims that the evidence was
insufficient to convict and that the trial court improperly
excluded a defense witness’s testimony, but remanded the
case for the trial court to determine whether Graham’s
motion for in camera review of privileged records should
have been granted, and if so, whether the records contained
evidence that would require a new trial. [See Graham, 142
N.H. at 363.] The trial court concluded that the
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privileged records did not require a new trial, and the
[NHSC] affirmed that decision on October 23, 1998.
Graham moved for a new trial based on claims of ineffective
assistance of trial counsel, which was denied. He then
filed multiple petitions for a writ of habeas corpus in
state court, which were denied. His appeals to the [NHSC]
were unsuccessful.
On January 8, 2001, Graham filed a petition for a writ of
habeas corpus in [the District of New Hampshire], which was
dismissed because he had not shown that he had exhausted
state remedies. [See Graham v. Coplan, No. 01-cv-010-SM
(D.N.H. Aug. 22, 2001) (ECF No. 11).] After initiating
other state court actions without success, Graham filed a
second habeas corpus action in [the District of New
Hampshire] on April 7, 2004, asserting ineffective
assistance of counsel. The case was dismissed as barred by
the statute of limitations. [See Graham v. Warden, N.N.H.
Corr. Facility, No. 04-cv-126-JD (D.N.H. Sept. 30, 2004)
(ECF No. 12).]
Graham v. Warden, N.H. State Prison, No. 12-CV-271-JD, 2012 WL
6115700, at *2, 2012 U.S. Dist. LEXIS 174486, at *1-*2 (D.N.H.
Dec. 10, 2012). Graham’s third petition for federal habeas
relief was dismissed in December 2012. See id. (dismissing as
untimely Graham’s petition for federal habeas relief).
In 2008 Graham filed an action raising claims that are
essentially the same as those here that name the NHSC as a
defendant. In that action and in this case, Graham has claimed
that his convictions were invalid, and that the NHSC, by failing
to reverse based on errors and abuses in his case, had deprived
him of due process. Approving a Report and Recommendation
(“R&R”) and applying the Rooker-Feldman doctrine, the court in
that prior case dismissed the action against the NHSC and the
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NHSC justices for lack of subject matter jurisdiction. See
Graham v. N.H. Supreme Ct., No. 08-cv-315-PB, 2009 U.S. Dist.
LEXIS 14908, 2009 WL 485141, at *1 (D.N.H. Feb. 24, 2009),
approving R&R, No. 08-cv-315-PB, 2009 WL 485141, at *2 (D.N.H.
Jan. 30, 2009) (citing, inter alia, D.C. Ct. App. v. Feldman,
460 U.S. 462, 476 (1983); Rooker v. Fid. Trust Co., 263 U.S.
413, 416 (1923)).
In the case presently before this court, Graham again names
the NHSC as a defendant, along with the State of New Hampshire
and attorneys from the N.H. Public Defender’s Office (“NHPD”)
who represented him at trial and/or on appeal. He cites 42
U.S.C. § 1983 and § 1985, in contending that his convictions are
invalid, and that they resulted from a conspiracy between the
NHPD, the prosecutor in his criminal case, and the state courts
involved in his trial, appellate, and post-conviction
proceedings. He further claims that the NHPD engaged in legal
malpractice, and that the state courts tortiously interfered
with his contractual relationship with the NHPD. He claims that
the NHSC has a duty under state law, N.H. Rev. Stat. Ann.
(“RSA”) § 490:4, to correct errors and abuses in lower state
court proceedings, and that the NHSC violated his rights by
declining to accept appeals in Graham’s post-conviction
proceedings. Graham argues that he presented an innocence claim
in the state courts, which, in his view, went “unaddressed,” as
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the Superior Court denied, without a hearing, the post-
conviction motion raising that claim, and the NHSC declined to
review the petition and pertinent appeal he filed in that court.
Additionally, Graham claims that the state courts violated his
rights under the Americans with Disabilities Act (“ADA”), by
failing to accommodate his disability in an evidentiary hearing
on his motion for a new trial.
Discussion
I. Rooker-Feldman and Collateral Estoppel
Plaintiff’s claims challenge as error the result in his
criminal case and in post-conviction proceedings. In
particular, he challenges the decision of the NHSC to decline to
accept appeals of Superior Court orders, or petitions for
original jurisdiction, relating to his criminal case and post-
conviction proceedings.
Graham filed essentially the same claims in a prior action
against the NHSC and the NHSC justices. The court in that case
dismissed those claims based on the Rooker-Feldman doctrine. In
doing so, the district judge approved an R&R, which stated as
follows:
[Despite] having couched his claim as a due process
violation actionable under 42 U.S.C. § 1983, Graham asks
this Court to overrule the NHSC by finding that [the NHSC]
egregiously refused or failed to correct what plaintiff[]
perceive[s] to have been errors made during his trial and
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appeal. In order to grant the plaintiff the relief he
seeks, this Court would have to determine that the NHSC
incorrectly decided a matter before it and thereby pass
judgment on the NHSC’s rulings and decisions as though this
Court were an appropriate appellate venue for cases lost in
the NHSC, which it is not.
Graham v. NH Supreme Court, No. 08-CV-315-PB, 2009 WL 485141, at
*2 (D.N.H. Jan. 30, 2009), R&R approved, No. 08-CV-315-PB, 2009
U.S. Dist. LEXIS 14908, at *1, 2009 WL 485141, at *1 (D.N.H.
Feb. 24, 2009). That discussion applies with equal force to
this case, and is consistent with the Supreme Court’s recent
pronouncements on the scope of the Rooker-Feldman doctrine.
See, e.g., Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544
U.S. 280, 284 (2005) (doctrine precludes district court
jurisdiction over “cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting
district court review and rejection of those judgments”).
Graham is collaterally estopped from relitigating the
applicability of the Rooker-Feldman doctrine to essentially the
same claims here. See generally Latin Am. Music Co. v. Media
Power Grp., 705 F.3d 34, 42 (1st Cir. 2013) (citation omitted).
Accordingly, for reasons stated by the court in Graham’s prior
action against the NHSC and its justices, Graham’s claims
against the NHSC should be dismissed under the Rooker-Feldman
doctrine.
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II. Heck
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court
held that,
in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called
into question by a federal court’s issuance of a writ of
habeas corpus.
Id. at 486–87 (footnote omitted). The Heck rule requires courts
to dismiss § 1983 claims if a favorable judgment would
necessarily imply the invalidity of that prisoner’s conviction
or sentence. Id. at 487. Heck bars plaintiff’s claims seeking
to challenge the validity of his conviction based on trial and
appellate errors and alleged ineffective assistance of counsel,
as plaintiff’s convictions have not been invalidated or called
into question by any official process. Accordingly, plaintiff’s
claims should also be dismissed on that ground.
III. Eleventh Amendment
Plaintiff names the State and the NHSC as defendants. “A
state’s immunity [from suit in federal court] under the Eleventh
Amendment applies whether a private plaintiff’s suit is for
monetary damages or some other type of relief.” New Hampshire
v. Ramsey, 366 F.3d 1, 14 (1st Cir. 2004); see also Davidson v.
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Howe, 749 F.3d 21, 27-28 (1st Cir. 2014); Coggeshall v. Mass.
Bd. of Reg. of Psychologists, 604 F.3d 658, 662 (1st Cir. 2010).
The claims against the State and its agency, the NHSC, should be
dismissed as barred by the Eleventh Amendment.
IV. Absolute Immunity
Plaintiff names a prosecutor Attorney Keable as a
defendant, in claims challenging decisions relating to Graham’s
prosecution. Prosecutors are entitled to absolute immunity from
claims arising out of their “prosecutorial actions that are
‘intimately associated with the judicial phase of the criminal
process.’” Van de Kamp v. Goldstein, 555 U.S. 335, 341 (2009)
(quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). The
claims against the prosecutor generally relate to Attorney
Keable’s decisions made in connection with judicial phase of
Graham’s prosecution. Absolute immunity applies, and such
claims should be dismissed.
V. Non-State Actors
In general, a “public defender does not act under color of
state law when performing a lawyer’s traditional functions as
counsel to a defendant in a criminal proceeding.” Polk Cnty. v.
Dodson, 454 U.S. 312, 325 (1981). A public defender can be held
to have engaged in state action for purposes of § 1983 only
under limited circumstances, none of which are present here.
See Georgia v. McCollum, 505 U.S. 42, 54 (1992) (describing
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circumstances under which public defender could be deemed to be
state actor for purposes of § 1983). Plaintiff’s allegations
regarding a conspiracy between the NHPD, the state courts, and
the prosecutor are speculative and conclusory. Stripped of
legal conclusions, the complaint fails to plead facts suggesting
that the NHPD conspired with state officials. Accordingly, the
claims against the NHPD defendants should be dismissed.
VI. Section 1985
Plaintiff cites 42 U.S.C. § 1985 as providing a federal
cause of action for his claims. To proceed on those claims,
however, plaintiff must allege facts showing a racial or class-
based discriminatory animus. See Perez-Sanchez v. Pub. Bldg.
Auth., 531 F.3d 104, 107 (1st Cir. 2008); Bragg v. Madison, 20
F. App’x 278, 285 (6th Cir. 2001); see also Kush v. Rutledge,
460 U.S. 719, 726 (1983); Diva’s Inc. v. City of Bangor, 411
F.3d 30, 38 (1st Cir. 2005). Plaintiff has alleged no facts in
that regard, and thus, the § 1985 claims should be dismissed.
VII. ADA
Plaintiff’s claims under the ADA relate to events that
occurred in his criminal trial and in post-conviction
proceedings more than four years ago, specifically, the alleged
failure of the state courts to accommodate his hearing
disability during a hearing on a motion for a new trial. If the
claim were deemed not to be barred under Heck, it would be time-
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barred. The applicable limitations period for such an ADA claim
is three years. See Nieves-Marquez v. Puerto Rico, 353 F.3d
108, 118 (1st Cir. 2003) (federal claims under ADA and § 1983
“all borrow the most analogous statute of limitations” from
state law, “provided that it does not conflict with federal law
or policy”). Accordingly, plaintiff’s ADA claim is untimely and
should be dismissed.
Conclusion
For the foregoing reasons, the district judge should
dismiss all claims in this action, pursuant to 28 U.S.C. § 1915A
and 28 U.S.C. § 1915(e)(2). 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
September 12, 2017
cc: Melvin Graham, pro se
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