Mabardy v. Grafton County Commissioners et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
David Mabardy, and
Edythe Murphy
v. 	Case No. 19-cv-223-PB
Grafton County et al.1
REPORT AND RECOMMENDATION2
Plaintiffs, David Mabardy and Edythe Murphy, have filed an
amended complaint (Doc. No. 40), which is the operative
complaint in this action,3 asserting violations of their rights
under the United States Constitution and state law. 	In
addition, Plaintiffs have filed the following documents, which
they have identified as exhibits to the amended complaint, or
which contain factual assertions which the court construes to
addend the amended complaint:
• 	Documentary Exhibits #1 - #10 (Doc. No. 1-1);
1The defendants identified in the amended complaint (Doc.
No. 40) are: Grafton County, Laurence A. Macleod Jr., David P.
Carlson, Paul V. Fitzgerald, Steven Mirkin, Michael Grier, and
the Grafton County Superior Court.
2Pursuant to an Order issued this date, the May 2, 2019
Report and Recommendation (Doc. No. 35) is vacated and replaced
with this Report and Recommendation.
3See June 27, 2019 Am. Compl. (Doc. No. 40, at 5)
(incorporating the exhibits to the original complaint into the
amended complaint by reference and explaining plaintiffs’
intention that the amended complaint (Doc. No. 40) entirely
supplant the original complaint (Doc. No. 1) and Amendments #1,
#2, and #3 (Doc. Nos. 37, 38)).
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• 	“Notice: Trespass on Rights; Regarding [215-2019-CR-
00053]” (Doc. No. 2);
• 	“Motion to Discharge” (Doc. No. 3);
• 	“Mailing Notice” (Doc. No. 4);
• 	“Notice: Undue Harm” (Doc. No. 5);
• 	“Notice: In Equality” (Doc. No. 8);
• 	“Motion to Discharge for Fraud” (Doc. No. 9);
• 	“Notice: Excessive Bail Relief Regarding Case No. 215-
2019-CR-{00053}” (Doc. No. 11);
• 	“Notice: Barratry Regarding Case No. 215-2019-CR-{00053}”
(Doc. No. 12);
• 	“Motion to Dismiss Case No. 215-2019-CR-00053” (Doc. No.
13);
• 	“Motion to Discharge/Dismiss Case No. 215-2019-CR-00053”
(Doc. No. 14);
• 	“Notice: Trespass on Rights Regarding Case No. 215-2019-
CR-{00053}” (Doc. No. 15);
• 	“Motion for Hearing for Emergency Relief from Excessive
Bail Regarding Case No. {215-2019-CR-00053}” (Doc. No.
18);
• 	“Motion for Hearing for Emergency Temporary Injunctive
Relief from Matter Regarding Case No. 215-2019-CR-
{00053}” (Doc. No. 19);
• 	“Motion for Hearing to Remove Protection Order:
{#NH00583J} Regarding Case No. {215-2019-CR-00053}” (Doc.
No. 20);
• 	“Notice: Private Doctor Evaluation Regarding Case No.
{215-2019-CR-00053” (Doc. No. 21);
• 	“Notice: Unjust Punishment Regarding Case No. 215-2019-
CR-{00053}” (Doc. No. 25);
• 	“Notice: Limitation of Ability, Deprivation of Privacy,
and Equality Regarding Case No. 215-2019-CR-{00053}”
(Doc. No. 26);
• 	“Motion to Discharge and Dismiss Regarding Case No. {215-
2019-CR-00053” (Doc. No. 27);
• 	“Hearing Request to Remove Wrongful Protection” (Doc. No.
31);
• 	“Affidavit of Truth” (Doc. No. 32);
• 	“Affidavit of Bail” (Doc. No. 33);
• 	Documentary exhibits to the amended complaint (Doc. Nos.
43, 57);
• 	“Verified Emergency Motion to Stay State Court
Proceedings and Estoppel by Conduct” (Doc. No. 52);
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• 	“Response by Objection and Correction to Doc No. 46, 46-
1, 50, 51” (Doc. No. 54);
• 	“Claimant(s) Traverse and Notice of Error [Regarding:
Docket Entry 61, ORDER], Good Faith Objection Now for
Then, Motion to Reconsider” (Doc. No. 64);
• 	“Claimant[s] Response to Docket Entry [55, 55-1]
Liable(s), Exception to Formal Accusation, Reinforce
Docket Entry [47, 52] to Object/Protest Abstention” (Doc.
No. 66);
• 	“Claimant(s) Exception to liable(s) Docket Entry [50],
Grafton’s Reply Memorandum in Support of [40] Liable(s)
Motion to Dismiss, Trustee’s PUBLIC NOTICE: Writ of
Attachment . . . – (Exhibit 1-PN), to Challenge the
Ownership and Use of Personal Property” (Doc. No. 67);
• 	“Notice: ‘Conflict of Interest’” (Doc. No. 68);
• 	“Notice: ‘Bad Faith’” (Doc. No. 69);
• 	“Notice: ‘Wrongful Conversion’” (Doc. No. 74);
• 	“Notice: ‘Two Elements of Proof’” (Doc. No. 75);
• 	Documents related to September 2019 Notice of Lien (Doc.
No. 76);
• 	“Claimant(s) Reply to Grafton County Defendants’
Objection to Docket Entry [73], Docket Entry [80]” (Doc.
No. 82); and
• 	“Notice: ‘Oversite [sic]’” (Doc. No. 83).
The amended complaint (Doc. No. 40) and the factual assertions
in the above-listed documents (Doc. Nos. 1-1, 2-5, 8, 9, 11-15,
18-21, 25-27, 31-33, 43, 52, 54, 57, 64, 66-69, 74-76, 82, 83)
are before the court for preliminary review, pursuant to 28
U.S.C. § 1915A(a) and LR 4.3(d)(1).
Also before the court are the following motions the
plaintiffs have filed in this matter:
• 	“Motion to Discharge” (Doc. No. 3);
• 	“Motion to Discharge for Fraud” (Doc. No. 9);
• 	“Motion to Dismiss Case No. 215-2019-CR-00053” (Doc. No.
13);
• 	“Motion to Discharge/Dismiss Case No. 215-2019-CR-00053”
(Doc. No. 14);
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• 	“Motion for Hearing for Emergency Relief from Excessive
Bail Regarding Case No. {215-2019-CR-00053}” (Doc. No.
18);
• 	“Motion for Hearing for Emergency Temporary Injunctive
Relief from Matter Regarding Case No. 215-20190-CR-
{00053}” (Doc. No. 19);
• 	“Motion for Hearing to Remove Protection Order:
{#NH00583J} Regarding Case No. {215-2019-CR-00053}” (Doc.
No. 20);
• 	“Motion to Discharge and Dismiss Regarding Case No. {215-
2019-CR-00053}” (Doc. No. 27);
• 	“Verified Emergency Motion to Stay State Court
Proceedings and Estoppel by Conduct” (Doc. No. 52); and
• 	“Motion for Partial Summary Judgment” (Doc. No. 71).
Certain defendants to this action have also filed the following
motions in this matter:
• 	“Grafton County Defendants’ Motion to Dismiss, Pursuant
to FRCP 23(b)(6)” (Doc. No. 7);
• 	“Grafton County Defendants’ Amended [Renewed] Motion to
Dismiss Amended Complaint (No. 40), Pursuant to FRCP
12(b)(6)” (Doc. No. 46); and
• 	“Motion to Dismiss on Behalf of Defendant Michael Grier”
(Doc. No. 51).
The court addresses the parties’ above-listed motions (Doc. Nos.
3, 7, 9, 13, 14, 18-20, 27, 46, 51, 52, 71) in this Report and
Recommendation.
Background
This action relates to criminal charges previously and
currently pending against Mabardy in the Grafton County Superior
Court (“GCSC”): State v. Mabardy, No. 215-2019-CR-053 (N.H.
Super. Ct., Grafton Cty.) (“Criminal Case I”); and State v.
Mabardy, No. 215-2019-CR-317 (N.H. Super. Ct., Grafton Cty.)
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(“Criminal Case II”). 	Both of those criminal cases relate to
events underlying Mabardy’s February 14, 2019 arrest for Second
Degree Assault-Domestic Violence.
On February 14, 2019, Defendant Holderness Police
Department (“HPD”) Officer David Grier, and other HPD officers
who are not defendants here, arrested Mabardy and charged him
with Second Degree Assault-Domestic Violence, alleging that
Mabardy had recklessly caused serious bodily injury to Murphy,
Mabardy’s girlfriend. 	Murphy asserts that during the incident
in question, she “slipped and fell and broke her wrist,” and
that “[t]he fall was an accident, not assault.” 	Aff. of Truth
of Edythe Murphy (Doc. No. 32, at 1). 	The plaintiffs assert
that Murphy never accused Mabardy of harming her and never
sought to have Mabardy prosecuted. 	The plaintiffs further
assert that when Officer Grier arrested and charged Mabardy, he
did so without any firsthand knowledge of the facts underlying
the alleged offense. 	Plaintiffs claim that Officer Grier failed
to sufficiently investigate the facts of the alleged offense
before arresting Mabardy, and failed to obtain verification of
the criminal allegations from Murphy or any other accuser.
On February 15 or 16, 2019, GCSC Judge Lawrence MacLeod
found probable cause to detain Mabardy pending trial, and issued
an order setting Mabardy’s bail at $20,000 cash only and
imposing bail conditions, including an order that Mabardy have
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no contact with Murphy. 	See Feb. 15, 2019 Order, Criminal Case
I. 	Plaintiffs state that Murphy did not at any time request
that the court impose a no-contact order. 	Plaintiffs also
assert that Murphy asked the Victim Witness Advocate at the
Grafton County Attorney’s Office for guidance as to how to
remove the “no contact” order, but that office refused to assist
her, as the prosecutor, Deputy Grafton County Attorney (“DGCA”)
Paul Fitzgerald, insisted that the order remain in place.
Mabardy was detained for more than two months at the Grafton
County House of Corrections before Murphy posted his bail.
On February 19, 2019, while still detained pretrial,
Mabardy filed a number of documents in the GCSC, including a
request for a bail reduction and a notice of declination of
court-appointed counsel. 	On February 21, 2019, the GCSC held a
status of counsel hearing, at which Mabardy again attempted to
decline appointed counsel, and indicated his desire to represent
himself in his criminal case. 	At that hearing, Judge MacLeod
conducted a “Faretta”4 colloquy with Mabardy, denied Mabardy’s
request to waive counsel, and appointed Attorney Steven Mirkin
to represent Mabardy in Criminal Case I. 	See Feb. 22, 2019
Order, Criminal Case I. 	That appointment obligated Mabardy to
pay $825.00 to the State of New Hampshire’s Office of Cost
4See Faretta v. California, 422 U.S. 806 (1975).
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Containment. 	The court did not address any of Mabardy’s
February 19, 2019 filings at the February 21, 2019 hearing.
Plaintiffs also assert that at the February 21, 2019
hearing, Mabardy advised the court and prosecutor that he was
prepared to go to trial on that date, and that he wanted to go
to trial, and have the opportunity to confront his accuser, on
that date. 	The court denied that request.
On February 22 or 23, 2019, after Attorney Mirkin had been
appointed, Mabardy attempted to file documents on his own behalf
in the GCSC. 	GCSC Clerk David Carlson would not accept
Mabardy’s pro se filings because, at that time, Mabardy was
represented by Attorney Mirkin. 	The plaintiffs further allege
that Clerk Carlson never scheduled a hearing on Mabardy’s
February 19, 2019 request for a bail reduction, and Attorney
Mirkin never sought a bail reduction on Mabardy’s behalf, which
resulted in Mabardy’s subjection to extended pretrial detention.
On June 3, 2019, Judge MacLeod dismissed the charge against
Mabardy in Criminal Case I without prejudice, and vacated the
bail order in that matter, because Mabardy was not indicted
within ninety days of his arrest. 	See June 3, 2019 Order,
Criminal Case I (Doc. No. 40, at 32). 	However, a Grafton County
grand jury returned an indictment against Mabardy on July 19,
2019, again charging Mabardy with Second Degree Assault –
Domestic Violence, arising from the events underlying Mabardy’s
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February 14, 2019 arrest. 	See July 19, 2019 Indictment,
Criminal Case II (Doc. No. 46-2). 	Criminal Case II is pending
in the GCSC.
An arraignment on the July 2019 indictment was scheduled on
August 13, 2019. 	Mabardy asserts that he was not given proper
or timely notice of the arraignment, and that as a result, he
was unable to attend the arraignment. 	According to the GCSC
Case Summary for Criminal Case II, Mabardy did not appear for
his scheduled August 13, 2019 arraignment, and a warrant issued
for Mabardy’s arrest on August 20, 2019. 	Mabardy states that he
is presently in fear of losing his liberty and suffering other
harm with regard to Criminal Case II, because he could not (and
did not) appear at the August 13, 2019 arraignment.
Preliminary Review
I. 	Standard
The court may dismiss claims asserted in a complaint filed
by a pro se plaintiff who was incarcerated at the time the
complaint was filed, if the court lacks subject matter
jurisdiction, a defendant is immune from the relief sought, the
complaint fails to state a claim, or the action is frivolous or
malicious. 	See 28 U.S.C. § 1915A(b); LR 4.3(d)(1)(A). 	In
determining whether a pro se pleading states a claim, the court
construes the pleading liberally. 	See Erickson v. Pardus, 551
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U.S. 89, 94 (2007). 	In conducting this preliminary review, the
court determines whether, stripped of legal conclusions, and
with all reasonable inferences construed in plaintiff’s favor,
the complaint contains “sufficient factual matter, accepted as
true, to ‘state a claim to relief’” upon which relief can be
granted. 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation
omitted).
II. 	Identification of Parties and Nature of Action
A. 	Plaintiffs and Defendants
In their amended complaint the plaintiffs refer to
themselves as “claimants,” and refer to the parties against whom
this suit is brought as “libellants.” 	This action is a civil
action. 	Mabardy and Murphy are thus properly referred to as
“plaintiffs,” and the individuals against whom they seek to
proceed in this matter are properly referred to as “defendants.”
B. 	Private Member Association
Mabardy is identified in the plaintiffs’ filings as “David
Mabardy, Private Member Association,” or as “Trustee for David
Mabardy Private Member Association.” 	To the extent either
Mabardy or Murphy, who are each representing themselves in this
action, intend to represent any person or entity other than
themselves in this matter, including a “Private Member
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Association,” they are prohibited from doing so, as self-
represented litigants cannot prosecute claims in this court on
behalf of any person or entity other than themselves. 	See 28
U.S.C. § 1654; LR 83.2(d). 	Further, this court’s local rules
require that a “corporation, unincorporated association, or
trust” appear in this court only through licensed counsel. 	See
LR 83.6(c). 	Accordingly, the court construes this action to
have been brought by Mabardy, an individual plaintiff acting
only on his own behalf, and Murphy, an individual plaintiff
acting only on her own behalf. 	The rights of parties neither
personally appearing in this matter on their own behalf, nor
represented by counsel, are not properly asserted in this action
by the plaintiffs. 	Accordingly, the district judge should:
dismiss all of the claims asserted by or on behalf of the
Private Member Association referenced in the plaintiffs’
filings, and dismiss the Private Member Association from this
action to the extent it is purported to be a party hereto.
C. 	Complaint in Civil Action
Plaintiffs assert that this action “is a verifiable Claim,
not a Complaint.” 	Pls.’ Resp. by Obj. and Corr. to Doc. Nos.
46, 46-1, 5-, 51 (Doc. No. 54, at 9). 	While plaintiffs’
requests for relief are presented as “claims,” a civil action
filed in this court must be initiated by the filing of a
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“complaint” in which plaintiffs’ claims are asserted. 	See Fed.
R. Civ. P. 3 (“A civil action is commenced by filing a complaint
with the court.” (emphasis added)); see also Fed. R. Civ. P. 2
(“There is one form of action – the civil action.”).
Accordingly, notwithstanding plaintiffs’ purported authority to
the contrary, this action is a civil action, initially brought
by complaint (Doc. No. 1), now pursued by amended complaint
(Doc. No. 40), asserting claims for relief.
III. Claims
Generously construed, the factual assertions in the amended
complaint and addenda thereto assert the following claims, for
which the plaintiffs seek damages and injunctive relief under
state law where indicated, and for violations of their federal
rights, under 42 U.S.C. § 1983:
1. 	HPD Officer David Grier improperly arrested Mabardy
for a felony offense on February 14, 2019, and improperly
identified Murphy as the victim of and witness to that
crime, without having personal knowledge or verification of
the facts by any victim/accuser, and without sufficiently
investigating the offense, where the totality of the
circumstances did not provide probable cause to arrest
Mabardy, in violation of:
a. 	Mabardy’s Fourth Amendment right, and rights
under state law, not to be subjected to unreasonable
seizures of his person, by subjecting Mabardy to:
i. 	False Arrest,
ii. 	False Imprisonment, and
iii. Malicious Prosecution;
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b. 	Mabardy’s Fourth Amendment and state law right to
privacy;
c. 	Mabardy’s Fourteenth Amendment right and state
law right to the presumption of innocence in the
absence of a criminal conviction;
d. 	Mabardy’s Fourteenth Amendment and state law
right to equal protection; and
e. 	Murphy’s First Amendment right of association,
and state law rights to “privacy, self-determination,
good conscience, private association and creed,” to
the extent Grier gave her the stigmatizing and false
label of “victim.”
2. 	GCSC Judge Laurence MacLeod, acting in concert with
DGCA Paul Fitzgerald, subjected Mabardy to excessive bail,
after Mabardy stated his intention to decline court-
appointed counsel, by setting Mabardy’s bail at $20,000
cash only, and by ordering that, as a condition of bail,
Mabardy have no contact with Edythe Murphy, as Mabardy has
no history of violence, and where Murphy neither accused
Mabardy of violent behavior nor requested a “no contact”
order, in violation of:
a. 	Mabardy’s Eighth and Fourteenth Amendment right
not to be subject to excessive bail;
b. 	Mabardy’s Fourteenth Amendment right to the
presumption of innocence, and not to be subject to
punishment, in the absence of a criminal conviction;
c. 	Mabardy’s Sixth Amendment right to decline court-
appointed counsel;
d. 	Mabardy’s and Murphy’s Fourth Amendment and state
law rights to privacy; and
e. 	Mabardy’s and Murphy’s First Amendment right of
association.
3. 	DGCA Paul Fitzgerald refused to seek removal of the
“no contact” order issued by the GCSC in Criminal Case I
after Murphy informed his office that there was no need for
that order, that it had been obtained on her behalf without
her consent, and that she did not wish to have the order in
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effect, but instead wished to have contact with Mabardy, as
Mabardy had never been violent to her and she did not fear
Mabardy, in violation of:
a. 	Mabardy’s and Murphy’s Fourth Amendment and state
law right to privacy;
b. 	Mabardy’s and Murphy’s First Amendment right of
association;
c. 	Mabardy’s and Murphy’s Fourteenth Amendment
rights to due process and equal protection; and
d. 	Mabardy’s and Murphy’s rights under the New
Hampshire Constitution, Part 1, Articles 1, 2, 2(b),
4, and 5.
4. 	GCSC Clerk David Carlson refused to schedule a hearing
on Mabardy’s request for a bail reduction, in violation of
Mabardy’s:
a. 	Eighth Amendment right not to be subject to
excessive bail; and
b. 	Fourteenth Amendment right not to be deprived of
his liberty without due process.
5. 	GCSC Judge Laurence MacLeod and DGCA Paul Fitzgerald
refused Mabardy’s request for a trial on February 21, 2019,
in violation of Mabardy’s Sixth Amendment right to confront
the witnesses and evidence against him, and present all
proofs favorable on his own behalf.
6. 	With regard to Criminal Case I, GCSC Judge Laurence
MacLeod and DGCA Paul Fitzgerald effected Mabardy’s
detention and prosecution on a Second Degree Assault-
Domestic Violence charge, in the absence of probable cause
for that offense, in violation of Mabardy’s Fourth
Amendment and state law rights not to be subjected to
unreasonable seizures of his person, by causing Mabardy to
be subject to:
a. 	False Imprisonment, and
b. 	Malicious Prosecution.
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7. 	GCSC Judge Laurence MacLeod and Attorney Steven Mirkin
required Mabardy to proceed in Criminal Case I with court-
appointed counsel, and denied Mabardy’s request to
represent himself in that matter, in violation of:
a. 	Mabardy’s Sixth Amendment right to represent
himself in his criminal case;
b. 	Mabardy’s Sixth and Fourteenth Amendment right to
access the courts;
c. 	Mabardy’s Fourteenth Amendment due process
rights, as requiring Mabardy to proceed with court-
appointed counsel caused Mabardy to become an
involuntary “ward of the court”; and
d. 	Part 1, Article 9 of the New Hampshire
Constitution.
8. 	Attorney Steven Mirkin requested that the GCSC
determine Mabardy’s mental competency to stand trial, and
GCSC Judge Laurence MacLeod allowed the request, and
ordered Mabardy to be evaluated by a court-appointed
psychologist without Mabardy’s consent, despite Mabardy’s
offer to provide the court with a copy of two recent
reports prepared by a private doctor finding that Mabardy
was mentally competent, and his offer to submit to another
evaluation by a private doctor rather than the court-
appointed evaluator, in violation of Mabardy’s:
a. 	Fourteenth Amendment rights to equal protection
and due process; and
b. 	Fourth Amendment right to privacy.
9. 	DGCA Paul Fitzgerald failed to disclose exculpatory
evidence to Mabardy in his state criminal case, including
Murphy’s statements indicating that Mabardy did not assault
Murphy, in violation of Mabardy’s Fourteenth Amendment
right to due process.
10. 	GCSC Clerk David Carlson refused to accept documents
Mabardy filed on February 22 or 23, 2019, including a
declination of court-appointed counsel, on the basis that
Mabardy was then represented by counsel, in violation of
Mabardy’s:
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a. 	Sixth and Fourteenth Amendment rights to access
the courts;
b. 	Sixth Amendment right to represent himself in his
criminal proceedings; and
c. 	rights relating to “extrinsic fraud.”
11. 	DGCA Paul Fitzgerald sought and obtained a grand jury
indictment charging Mabardy with Second Degree Assault on
July 19, 2019, in Criminal Case II: without direct evidence
from an accuser or injured party concerning the events upon
which the indictment is based; without presenting to the
grand jury “substantial exculpatory evidence” known to DGCA
Fitzgerald; and in retaliation for Mabardy’s and Murphy’s
filing of this lawsuit, in violation of:
a. 	Mabardy’s Sixth and Fourteenth Amendment rights
to a fair and impartial grand jury;
b. 	Mabardy’s and Murphy’s First Amendment right to
petition the government for a redress of grievances by
filing a civil lawsuit;
c. 	Mabardy’s Fifth and Fourteenth Amendment right
not to be twice placed in jeopardy for a single
offense; and
d. 	Mabardy’s Fourth Amendment and state law rights
not to be subjected to a malicious prosecution.
12. 	In Criminal Case II, the GCSC failed to provide
Mabardy with proper notice of an arraignment scheduled for
August 13, 2019, resulting in Mabardy’s nonattendance at
the arraignment, and subjecting Mabardy to a risk of arrest
and detention, in retaliation for Mabardy’s and Murphy’s
pursuit of this lawsuit, in violation of:
a. 	Mabardy’s Fourteenth Amendment due process
rights; and
b. 	Mabardy’s and Murphy’s First Amendment right to
petition the government for a redress of grievances by
filing a civil lawsuit.
13. 	DGCA Paul Fitzgerald and GCSC Judge Laurence MacLeod
are acting without jurisdiction, to the extent they have
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acted to bring or maintain Criminal Case II against
Mabardy, in violation of:
a. 	Mabardy’s Fourteenth Amendment due process right
not to be tried by a court without jurisdiction over
his criminal prosecution;
b. 	Mabardy’s Fifth and Fourteenth Amendment right
not to be twice placed in jeopardy for the same
offense; and
c. 	Mabardy’s Sixth Amendment right to have his
criminal case tried before an impartial judge.
14. 	The defendants’ actions which violated plaintiffs’
rights in Criminal Case I constituted fraud in the
inducement and fraud upon the court under state law.
15. 	Defendants, in connection with Mabardy’s February 14,
2019 arrest, and ensuing detention and prosecution, engaged
in conduct which constituted the crimes of: Personage,
Barratry, Peonage, Slavery, Trafficking in Persons,
Extortion, Fraud, and Conversion/Theft.
16. 	The defendants’ actions with regard to Criminal Case I
and Criminal Case II denied Mabardy and/or Murphy their
rights to self-determination, “right to creed,” property
rights, and rights under Part 1, Articles 1 and 2 of the
New Hampshire Constitution;
17. 	The defendants’ actions with regard to Criminal Case I
and Criminal Case II constituted the exercise of “forceful
police power” which was not authorized by, and/or violated:
a “bi-lateral social compact”; the Law of Nations; the
Universal Declaration of Human Rights; the Bible; the
Uniform Commercial Code; the Declaration of Independence;
the Federalist Papers; Robert’s Rules of Order; or the
Texas Constitution.
IV. 	Grafton County
Plaintiffs have named Grafton County as a defendant to this
action. 	A plaintiff who brings claims under 42 U.S.C. § 1983
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against a municipality like Grafton County “‘must officer
sufficient facts to permit the court to identify an
unconstitutional custom or policy of the [municipality] that was
the moving force behind the injury alleged.’” 	Gilbert v. City
of Chicopee, 915 F.3d 74, 80 (1st Cir. 2019) (citation omitted);
see also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978).
Plaintiffs have not asserted any facts in the amended
complaint alleging that either or both of them have been injured
by any Grafton County policy or custom. 	Accordingly, the
district judge should dismiss all claims against Grafton County
and should dismiss the County as a party defendant from this
action, as the plaintiffs have not stated any federal claim upon
which relief can be granted against that defendant.
V. 	Criminal Conduct
In the claim identified above as Claim 15, the plaintiffs
assert that the defendants in this case have engaged in criminal
conduct. 	“Private citizens lack a judicially cognizable
interest in the prosecution or nonprosecution of another.” 	In
re Compact Disc Minimum Advert’d Price Antitr. Litig., 456 F.
Supp. 2d 131, 145 (D. Me. 2006) (quoting Linda R.S. v. Richard
D., 410 U.S. 614, 619 (1973)) (internal quotation marks and
alterations omitted). 	Because the plaintiffs cannot state a
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private cause of action based on the defendants’ alleged
violation of criminal laws, the district judge should dismiss
Claim 15.
VI. 	Noncognizable Claims
As to Claims 7(d), 16, and 17, neither plaintiffs’ claims,
nor the asserted sources of authority for the rights they
reference, give rise to any private cause of action cognizable
in this court. 	Accordingly, the district judge should dismiss
Claims 7(d), 16, and 17.
VII. Claims Seeking Injunctive Relief in Criminal Case I
In the claims identified above as Claims 2(a)-(e), 3(a)-
(d), 4(a)-(b), 5, 6(a)-(b), 7(a)-(c), 8(a)-(b), 9, 10(a)-(c),
and 14, the plaintiffs seek injunctive relief, in that they have
asked this court to issue orders directing the defendants to
take certain actions in Criminal Case I. 	As stated above,
Criminal Case I has been dismissed. 	Accordingly, to the extent
plaintiffs seek injunctive relief as to Claims 2(a)-(e), 3(a)-
(d), 4(a)-(b), 5, 6(a)-(b), 7(a)-(c), 8(a)-(b), 9, 10(a)-(c),
and 14, their claims are moot, and the district judge should
dismiss those claims.
VIII. Immunity
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A. 	Judicial Immunity
1. 	Damages Claims
Plaintiffs name Judge MacLeod as a defendant to the claims
identified above as Claims 2(a)-(e), 5, 6(a)-(b), 7(a)-(c),
8(a)-(b), 13(a)-(c), and 14. 	“[W]hen a judge carries out
traditional adjudicatory functions, he or she has absolute
immunity for those actions.” 	Zenon v. Guzman, 924 F.3d 611, 616
(1st Cir. 2019); see also Mireles v. Waco, 502 U.S. 9, 11-12
(1991) (judicial immunity is overcome only for “actions not
taken in the judge’s judicial capacity” and “for actions, though
judicial in nature, taken in the complete absence of all
jurisdiction”) (per curiam). 	Judicial immunity from claims for
damages applies even when a judge’s “actions are malicious,
corrupt, mistaken, or taken in bad faith.” 	Zenon, 924 F.3d at
616.
Judge MacLeod’s conduct which the plaintiffs alleged caused
one or both of them harm, and which underlies Claims 2(a)-(e),
5, 6(a)-(b), 7(a)-(c), 8(a)-(b), 13(a)-(c), and 14, was
undertaken while he was performing judicial functions, including
setting bail, scheduling hearings and trial, ruling on the
parties’ motions, and appointing counsel. 	Accordingly, Judge
MacLeod is entitled to absolute immunity as to Claims 2(a)-(e),
5, 6(a)-(b), 7(a)-(c), 8(a)-(b), 13(a)-(c), and 14, and the
district judge should dismiss those claims as asserted against
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Judge MacLeod, to the extent they seek damages.
2. 	Federal Claims for Injunctive Relief
In amending 42 U.S.C. § 1983 in 1996, Congress barred
litigants from pursuing claims for injunctive relief, for
violations of their federal rights, asserted against judges for
actions taken in their judicial capacity. 	See Pub. L. No. 104-
317, 110 Stat. 3847 (codified as amended at 42 U.S.C. § 1983)
(“‘[I]n any action brought against a judicial officer for an act
or omission taken in such officer’s judicial capacity,
injunctive relief shall not be granted unless a declaratory
decree was violated or declaratory relief was unavailable.’”).
That amendment extends the immunity afforded to judges for
claims for damages to cover claims for injunctive relief
“‘unless a declaratory decree was violated or declaratory relief
was unavailable.’” 	Adames v. Fagundo, 198 F. App’x 20, 22 (1st
Cir. 2006) (quoting § 1983). 	There is no suggestion in the
pleadings that a declaratory decree has been violated, or that
declaratory relief has been unavailable. 	Accordingly, Claims
13(a)-(c) should be dismissed, to the extent they seek
injunctive relief and are asserted against Judge Macleod.
B. 	Quasi-Judicial Immunity
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Plaintiffs name GCSC Clerk David Carlson as a defendant to
the claims for damages identified above as Claims 4(a)-(b),
10(a)-(c), and 14. 	Absolute quasi-judicial immunity bars
damages claims against court personnel performing discretionary
functions which are an integral part of the judicial process.
See Wymore v. Green, 245 F. App’x 780, 783 (10th Cir. 2007);
Ceparano v. Southampton Justice Ct., 404 F. App’x 537, 539 (2d
Cir. 2011).
Here, Clerk Carlson’s conduct which is alleged to have
violated Mabardy’s rights – not scheduling a bail hearing, and
refusing to accept Mabardy’s pro se filings while Mabardy was
represented by counsel – are duties integrally related to the
judicial process, and Carlson is thus entitled to absolute
immunity for those acts. 	See Catanzaro v. Davis, 686 F. App’x
91, 94 (3d Cir. 2017) (clerk’s office personnel “absolutely
immune for their role in helping the Court to ‘control its
docket’” (citation omitted)); Jackson v. Pfau, 523 F. App’x 736,
737-38 (2d Cir. 2013)(“‘[c]ourts have extended the absolute
judicial immunity afforded judges to individuals . . . who
perform functions closely associated with the judicial process”
and “judges and their supporting staff are absolutely immune in
matters regarding ‘[a] court’s inherent power to control its
docket’” (citation omitted)); Smith v. Erickson, 884 F.2d 1108,
1111 (8th Cir. 1989) (clerk’s duties in filing documents was an
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integral part of the judicial process, thus clerk’s intentional
delay in filing pleading protected by absolute judicial
immunity); Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1390 (9th
Cir. 1987) (clerk’s refusal to accept amended complaint was
integral part of judicial process and clerk thus entitled to
immunity). 	Accordingly, the district judge should dismiss
Claims 4(a)-(b), 10(a)-(c), and 14, to the extent they seek
damages and are asserted against Clerk Carlson.
C. 	Prosecutorial Immunity
Plaintiffs name DGCA Paul Fitzgerald, the prosecutor in
Criminal Case I and Criminal Case II, as a defendant to the
claims identified above as Claims 2(a)-(e), 3(a)-(d), 5, 6(a)-
(b), 9, 11(a)-(d), 13(a)-(c), and 14. 	“[P]rosecutors are
absolutely immune in exercising the core prosecutorial functions
of ‘initiating a prosecution and . . . presenting the State’s
case,’” Penate v Kaczmarek, 928 F.3d 128, 135 (1st Cir. 2019)
(quoting Imbler v. Pachtman, 424 U.S. 409, 431 (1976), “‘and
which occur in the course of his role as an advocate for the
state’” Penate, 928 F.3d at 136 (quoting Buckley v. Fitzsimmons,
509 U.S. 259, 273 (1993)).
DGCA Fitzgerald’s conduct underlying Claims 2(a)-(e), 3(a)-
(d), 5, 6(a)-(b), 9, 11(a)-(d), 13(a)-(c), and 14, which is
alleged to have violated the plaintiffs’ rights, was undertaken
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as part of the core prosecutorial functions of bringing and
maintaining criminal cases, engaging in discovery, and seeking
bail. 	Accordingly, to the extent plaintiffs seek damages for
those claims, DGCA Fitzgerald enjoys absolute immunity from
suit, and the district judge should dismiss Claims 2(a)-(e),
3(a)-(d), 5, 6(a)-(b), 9, 11(a)-(d), 13(a)-(c), and 14, to the
extent they are asserted against him.
D. 	Eleventh Amendment Immunity
In Claim 12, as identified above, the plaintiffs assert
that the GCSC failed to provide Mabardy with proper notice of
his scheduled arraignment in Criminal Case II. 	The plaintiffs
do not name an individual responsible for that alleged failure.5
The Eleventh Amendment generally precludes suits against states
by private individuals in federal court, absent certain
exceptions not applicable here. 	See Va. Office for Prot. &
Advocacy v. Stewart, 563 U.S. 247, 253-54 (2011); Davidson v.
Howe, 749 F.3d 21, 27 (1st Cir. 2014). 	A state court is treated
like a state for purposes of the Eleventh Amendment. 	See Doe v.
Meyers, No. 18-cv-1039-JD, 2019 WL 4060068, at *2, 2019 U.S.
5To the extent the plaintiffs intended to bring Claim 12
seeking damages from a judge or a member of the court clerk’s
office, such defendants would be shielded by absolute judicial
immunity, or quasi-judicial immunity, respectively, rendering
such a damages claim unviable and properly dismissed from this
case.
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Dist. LEXIS 146160, at *6 (D.N.H. Aug. 28, 2019) (collecting
cases). 	Accordingly, the district judge should dismiss Claim
12, including its subparts. 	The district judge should also
dismiss the GCSC as a party defendant from this case.
IX. 	Federal Constitutional Claims Against Attorney Mirkin
Plaintiffs have asserted federal constitutional claims in
this action, identified above as Claims 7(a)-(c) and 8(a)-(b),
against Attorney Mirkin, Mabardy’s court-appointed public
defender. 	Section 1983 provides a cause of action for damages
for the deprivation of a federally secured right by a person
“acting under the color of state law.” 	Doucette v. Georgetown
Pub. Sch., 936 F.3d 16, 23 (1st Cir. 2019). 	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 Cty. 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
circumstances under which public defender could be deemed to be
state actor for purposes of § 1983).
Stripped of legal conclusions, the plaintiffs’ filings fail
to demonstrate that Attorney Mirkin was acting under color of
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state law at any time during his representation of Mabardy.
Accordingly, the district judge should dismiss Claims 7(a)-(c)
and 8(a)-(b) to the extent they are asserted against Attorney
Mirkin.
X. 	Abstention Under Younger v. Harris
Upon approval of this Report and Recommendation, the claims
which will remain in this action are those identified above as:
Claims 1(a)-(e), for damages and injunctive relief, asserted
against Officer Grier; Claim 11(a)-(d), for injunctive relief,
asserted against DGCA Fitzgerald; Claim 13(a)-(c), for
injunctive relief, asserted against DGCA Fitzgerald; and Claim
14, for damages, asserted against Attorney Mirkin and Officer
Grier. 	Those claims trigger this court’s obligation to abstain
under Younger v. Harris, 401 U.S. 37 (1971).
The Younger abstention doctrine generally requires federal
courts to abstain from enjoining or issuing declaratory relief
that would affect ongoing state criminal prosecutions, ongoing
state civil enforcement proceedings that resemble prosecutions,
and other ongoing civil proceedings that “‘implicate a State’s
interest in enforcing the orders and judgments of its courts,’”
absent extraordinary circumstances. 	Sirva Relocation, LLC v.
Richie, 794 F.3d 185, 192 (1st Cir. 2015) (quoting Sprint
Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013)). 	Younger
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generally requires abstention if the pending state proceeding
(1) is “judicial in nature,” (2) “implicates important state
interests,” and (3) provides an adequate opportunity for the
federal plaintiff to assert his or her federal claims or
defenses. 	Sirva Relocation, 794 F.3d at 196.
When those preconditions are satisfied, abstention is
mandatory, and the federal court is deprived of any discretion
to grant injunctive or declaratory relief, unless an exception
to Younger applies. 	See Colo. River Water Conserv. Dist. v.
United States, 424 U.S. 800, 816 n.22 (1976); Sirva Relocation,
794 F.3d at 192. 	The few extraordinary circumstances where
abstention is not required include state proceedings brought in
bad faith for purposes of harassment, state cases in which the
state forum provides inadequate protection of federal rights,
and circumstances where the state statute at issue in the
proceedings is “‘flagrantly and patently violative of express
constitutional prohibitions.’” 	Sirva Relocation, 794 F.3d at
192 (citations omitted).
Here, Criminal Case II is a criminal proceeding, judicial
in nature, which is pending in the state courts. 	Therefore,
Younger’s first precondition, that there be an ongoing state
judicial proceeding, is satisfied.
Criminal Case II also implicates the important state
interest in resolving alleged violations of state criminal law,
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and in controlling the manner in which criminal cases are
conducted in the state courts. 	This court’s further
consideration of the merits of Claims 1(a)-(e), 11(a)-(d),
13(a)-(c), and 14, to the extent those claims remain in this
case, would interfere with the state court’s consideration and
resolution of those important state interests. 	Further, the
state court proceedings in Criminal Case II will provide an
adequate opportunity to raise the issues asserted here, and
adverse decisions of the state’s trial courts can be appealed to
the New Hampshire Supreme Court. 	None of the exceptions to
Younger abstention apply here.
Therefore, this court’s further consideration, at this
time, of Claims 1(a)-(e), 11(a)-(d), 13(a)-(c), and 14, to the
extent those claims remain in this action, is precluded by
Younger. 	To the extent the plaintiffs seek equitable or
injunctive relief as to Claims 1(a)-(e), 11(a)-(d), 13(a)-(c),
and 14, the appropriate means of abstain therefrom, dismissal
without prejudice is the appropriate means of abstaining under
Younger. 	To the extent the plaintiffs seek damages for Claims
1(a)-(e) and 14, staying those claims is the appropriate means
of abstaining under Younger. 	See Rossi v. Gemma, 489 F.3d 26,
38 (1st Cir. 2007). 	Accordingly, the district judge should
dismiss, without prejudice, Claims 1(a)-(e) (to the extent those
claims seek injunctive relief), 11(a)-(d), 13(a)-(c), and 14,
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without prejudice; and should stay Claims 1(a)-(e) and 14 (to
the extent the plaintiffs seek damages for those claims).6
Motions
I. 	Plaintiff’s Motions Filed Before June 3, 2019
Plaintiffs’ motions seeking discharge and/or dismissal of,
or relief from the bail order issued in, Criminal Case I (Doc.
Nos. 3, 9, 13, 14, 18-20, 27) were rendered moot by the June 3,
2019 dismissal of Criminal Case I. 	Accordingly, the district
judge should deny those motions as moot.
II. 	Motions to Disqualify “Lawyer-Judges”
Plaintiffs move to disqualify all judges who are also
attorneys from presiding over or making rulings in this case.
The motion is grounded on the plaintiffs’ belief that judges who
are lawyers will be biased in favor of the defendants here, as
at least some of those parties will be represented in this case
by lawyers. 	See Doc. Nos. 40, 54, 64. 	This court holds no such
bias, and the fact that the judges in this court are lawyers
does not present any reasonable basis for recusal or
disqualification. 	Accordingly, plaintiffs’ requests (Doc. Nos.
6If the district judge approves this recommendation to stay
Claims 1(a)-(e) and 14 to the extent those claims seek damages,
the court will issue a further Order regarding the terms and
conditions of that stay.
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40, 54, 64) to disqualify all “lawyer judges” from hearing this
case are denied.
III. Defendants’ Motions to Dismiss
The Grafton County defendants filed a motion to dismiss
(Doc. No. 7) the initial complaint. 	As that complaint has been
replaced by the amended complaint (Doc. No. 40), which is the
operative complaint in this matter, the district judge should
deny the Grafton County defendants’ motion to dismiss the
original complaint (Doc. No. 7) as moot.
The Grafton County defendants and Officer Grier have now
filed motions (Doc. Nos. 46, 51) to dismiss the amended
complaint. 	Pursuant to an Order issued this date, those motions
are taken under advisement and will be addressed after the
district judge rules on this Report and Recommendation.
IV. 	Plaintiffs’ Motion to Stay Criminal Case II
Plaintiffs have filed a motion (Doc. No. 52) asking this
court to stay the state court proceedings in Criminal Case II.
For the reasons set forth above, the Younger abstention doctrine
prevents this court from enjoining or staying that ongoing state
court matter. 	The district judge, therefore, should deny the
plaintiffs’ motion (Doc. No. 52) to stay the proceedings in
Criminal Case II.
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V. 	Plaintiffs’ Motion for Partial Summary Judgment
The plaintiffs have filed a motion for partial summary
judgment (Doc. No. 71), arguing that this court should grant
judgment in their favor as to the claims asserted against Judge
MacLeod, Clerk Carlson, and Attorney Mirkin, as those defendants
have neither appeared in this case nor responded to the amended
complaint. 	The relief plaintiffs seek in that motion is the
entry of a default and/or default judgment against those
defendants.
When this case was initially filed, Mabardy was
incarcerated. 	Accordingly, for purposes of preliminary review,
this court has treated this matter as a prisoner complaint. 	In
a civil action filed by a prisoner, a defendant need not respond
to the complaint until the court completes preliminary review,
under 28 U.S.C. § 1915A(a), and directs service on that
defendant. 	See Askew v. Holder, No. CIV.A. 12-0221, 2013 WL
595893, at *1, 2013 U.S. Dist. LEXIS 21601, *1-*2 (D.D.C. Feb.
15, 2013) (collecting cases). 	The court has not yet directed
that any defendant be served with the complaint in this matter.
As the defendants here have not yet been obliged to appear
or answer, the entry of default or default judgment against any
defendant in this case is not warranted. 	Accordingly, the
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31
district judge should deny plaintiff’s motion for partial
summary judgment (Doc. No. 71).
Conclusion
For the foregoing reasons, it is recommended that the
district judge:
1. 	Dismiss without prejudice Claims 1(a)-(e), 11(a)-(d),
13(a)-(c), and 14, to the extent they seek injunctive
relief against any defendant other than Judge MacLeod,
Grafton County, or the GCSC, under Younger;
2. 	Stay Claims 1(a)-(e) and 14, to the extent they seek
damages against any defendant remaining in this case, under
Younger;
3. 	Dismiss the following claims in this action with
prejudice:
a. 	Claims 2(a)-(e), 3(a)-(d), 4(a)-(b), 5, 6(a)-(b),
7(a)-(d), 8(a)-(b), 9, 10(a)-c), 11(a)-(d), 12, 13(a)-
(c), and 14, to the extent they seek damages and are
asserted against Judge MacLeod, Clerk Carlson, DGCA
Fitzgerald, and/or the GCSC;
b. 	Claims 2(a)-(e), 3(a)-(d), 4(a)-(b), 5, 6(a)-(b),
7(a)-(d), 8(a)-(b), 9, 1(a)-(c), and 14, to the extent
they seek injunctive relief and are asserted against
any defendant, as moot;
c. 	Claims 7(a)-(d) and 8(a)-(b) to the extent they
are asserted against Attorney Mirkin;
d. 	Claims 13(a)-(c), to the extent they seek
injunctive relief and are asserted against Judge
Macleod;
e. 	Claim 12, to the extent it seeks injunctive
relief, and is asserted against Judge MacLeod or the
GCSC; and
f. 	Claims 15, 16, and 17, in their entirety;
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4. 	Dismiss all party plaintiffs from this action, other
than David Mabardy and Edythe Murphy;
5. 	Dismiss all of the party defendants from this action
other than Officer Grier and Attorney Mirkin; and
6. 	Deny the following motions in this action:
a. 	Plaintiffs’ motions seeking injunctions affecting
Criminal Case I (Doc. Nos. 3, 9, 13, 14, 18-20, 27) as
moot;
b. 	Plaintiffs’ motions and requests to disqualify
“Lawyer-Judges” (Doc. Nos. 40, 54, 64);
c. 	Grafton County defendants’ motion to dismiss
initial complaint (Doc. No. 7) as moot;
d. 	Plaintiffs’ Motion to Stay Criminal Case II (Doc.
No. 52); and
e. 	Plaintiffs’ Motion for Partial Summary Judgment
(Doc. No. 71).
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 specific written objections to the
Report and Recommendation 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).
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__________________________
Andrea K. Johnstone
United States Magistrate Judge
November 22, 2019
cc: 	David Mabardy, pro se
John A. Curran, Esq.
Brian J. S. Cullen, Esq.
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