Nicolosi v. Hicks et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Malinda Nicolosi
v. 	Case No. 19-cv-1142-PB
New Hampshire Supreme Court et al.1
REPORT AND RECOMMENDATION
Before the court is pro se plaintiff Malinda Nicolosi’s
complaint (Doc. No. 1) asserting claims arising out of child
custody proceedings in the New Hampshire Circuit Court, Tenth
1Plaintiff names the following defendants in the caption of
the complaint: the New Hampshire Supreme Court (“NHSC”); NHSC
Senior Associate Justice Gary E. Hicks; NHSC Justices James P.
Bassett, Anna Barbara Hantz Marconi, and Patrick E. Donovan; the
New Hampshire Superior Court (“Superior Court”); Superior Court
Chief Justice Tina L. Nadeau; Superior Court Justices: David A.
Anderson, Peter H. Bornstein, Jacalyn A. Colburn, N. William
Delker, Daniel I. St. Hilaire, Martin Honigberg, Steven M.
Houran, Mark E. Howard, Amy L. Ignatius, John C. Kissinger Jr.,
Lawrence A. MacLeod Jr., Richard B. McNamara, Amy Messer, Diane
M. Nicolosi, James D. O’Neill III, David W. Ruoff, Andrew R.
Schulman, Brian T. Tucker, Marguerite L. Wageling, Kenneth C.
Brown, Larry M. Smukler, James J. Barry, Arthur E. Bean Jr.,
Arthur D. Brennan, Jean K. Burling, Edward J. Fitzgerald III,
William J. Groff, Bernard J. Hampsey Jr., Philip S. Hollman,
John M. Lewis, Philip P. Mangones, George L. Manias, Kathleen A.
McGuire, Bruce E. Mohl, Robert E. K. Morrill, Walter L. Murphy,
Peter H. Fauver, David A. Garfunkel, Kenneth R. McHugh; the New
Hampshire Circuit Court (“NHCC”); NHCC Administrative Judge
David D. King; NHCC Judges Robert J. Foley, Elizabeth Leonard,
and Kerry Steckowych; NHCC Referee Philip Cross; NHCC Senior
Administrator Gina Belmont; NHCC Administrators: Kate E. Geraci,
Paula J. Hurley, Patrick W. Ryan, and Bridgette Siff Holmes;
Anthony Grillo Jr.; Joan Grillo; and Cheri Grillo Nolan.
Omitted from the caption, but identified as a defendant in the
narrative of the complaint, is NHCC Judge Robert S. Stephen.
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Circuit-Family Division-Derry (“Derry Family Court”) concerning
her minor son, A.N.-G. 	See In re Grillo and Nicolosi, No. 622-
2018-DM-0053, DFC (“Derry Family Court Case”). 	Nicolosi has
alleged that her son’s health is threatened, and she has filed a
document entitled “Motion for Ex Parte” (Doc. No. 3). 	The court
has construed those documents as a request for preliminary
injunctive relief, specifically, an order from this court
vacating the Derry Family Court’s November 1, 2019 Order which,
Nicolosi claims, allows A.N.-G.’s “legal father,” Anthony
Grillo,2 to carry out a plan to have A.N.-G. vaccinated in a
manner which Nicolosi alleges may be harmful to A.N.-G.
Nicolosi’s complaint is before the court for preliminary
review, pursuant to 28 U.S.C. § 1915(e)(2) and LR 4.3(d)(2).
The district judge has referred the requests for preliminary
injunctive relief to the undersigned magistrate judge for a
report and recommendation. 	See Nov. 13, 2019 Order.
Background
According to the complaint, Nicolosi and Anthony Grillo
have been engaged in the Derry Family Court Case, a contentious
custody/parenting dispute concerning their (now) three-year-old
2Nicolosi asserts that Grillo is A.N.-G.’s “legal father,”
although he is not the child’s biological father.
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son, A.N.-G, since February 2018. 	A review of the state court
docket reveals that the matter remains open, and that Nicolosi
also filed an interlocutory appeal on September 27, 2019, which
is pending in the New Hampshire Supreme Court (“NHSC”).
The state court docket and Nicolosi’s filings indicate that
the Derry Family Court recently issued one or more orders
allowing Anthony Grillo to make certain medical, dental, and
nutritional decisions for A.N.-G. 	Nicolosi alleges that Grillo
has made and/or intends to make medical and dental decisions
that have harmed A.N.-G. in the past, and/or that may cause him
harm in the future. 	In particular, Nicolosi alleges that
Anthony Grillo intends to have A.N.-G. receive ten vaccinations
at one time, when the recommended protocol for children with the
neurological disorder neutropenia,3 with which A.N.-G. has been
diagnosed, is spreading the vaccines out over time.
Claims
Nicolosi does not specifically set out the claims she seeks
to raise in this action. 	Liberally construing Nicolosi’s
3Neutropenia is “[a] condition in which there is a lower-
than-normal number of neutrophils (a type of white blood cell)
in the blood.” 	National Institute of Health, National Cancer
Institute, Dictionary of Cancer Terms,
https://www.cancer.gov/publications/dictionaries/cancer-
terms/def/neutropenia (last visited Nov. 8, 2019).
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complaint (Doc. No. 1), exhibits, and complaint addendum (Doc.
No. 3), the court finds that Nicolosi has asserted the following
claims in this matter, seeking equitable relief and damages for
violations of federal rights, under federal laws including 42
U.S.C. § 1983:
1. 	Defendants improperly caused Nicolosi to lose the
ability to make medical, dental, and nutritional decisions
for her minor son, A.N.-G., in violation of her: (a) First
Amendment rights to familial association and to parent her
child, and (b) Fourteenth Amendment due process rights.
2. 	Derry Family Court Referee Philip Cross destroyed
critical evidence in the Derry Family Court Case, including
DNA test results demonstrating that Justin Holmes, not
Anthony Grillo, is A.N.-G.’s biological father, in order to
cover up “birth certificate fraud” committed by Referee
Cross and other defendants to this action, in violation of
Nicolosi’s Fourteenth Amendment due process rights.
3. 	Defendants in this action colluded with one another
to: (a) violate anti-trust laws; (b) subject Nicolosi and
A.N.-G. to commercial trafficking; and (c) violate
Nicolosi’s civil rights and due process rights.
4. 	Defendants in this case committed the crimes of: birth
certificate fraud, “paper terrorism,” and commercial
trafficking of persons, in the Derry Family Court Case.
Discussion
I. 	Preliminary Review
A. 	Standard
The court may dismiss claims asserted in a complaint filed
by a pro se plaintiff proceeding in forma pauperis if the court
lacks subject matter jurisdiction, a defendant is immune from
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the relief sought, the complaint fails to state a claim, or the
action is frivolous or malicious. 	See 28 U.S.C. § 1915(e)(2);
LR 4.3(d)(2). 	The court liberally construes pleadings filed by
pro se parties. 	See Erickson v. Pardus, 551 U.S. 89, 94
(2007). 	In considering whether a complaint states a claim, the
court determines whether, stripped of legal conclusions, and
with all reasonable inferences construed in the 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).
B. 	Claims Asserted on Behalf of Others
Nicolosi has asserted claims on behalf of herself; her
minor son, A.N.-G.; and Justin Holmes in this action. 	As a
self-represented non-attorney plaintiff, Nicolosi may not
litigate claims on behalf of anyone but herself, including her
minor child. 	See 28 U.S.C. § 1654; LR 83.2(d); cf. Maroni v.
Pemi-Baker Reg’l Sch. Dist., 346 F.3d 247, 249 (1st Cir. 2003)
(noting that “usual common law rule prevent[s] non-attorney
parents from proceeding pro se on behalf of their minor child”);
see also Ethan H. v. New Hampshire, 968 F.2d 1210, *1 (1st Cir.
1992) (unpublished table decision) (“non-attorney parent must be
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represented by counsel in bringing an action on behalf of his or
her child” (citation omitted)). 	Accordingly, the court
construes this action to have been brought by Nicolosi, acting
only on her own behalf. 	The rights of other parties she
purports to represent are not properly litigated in this action
unless they appear personally or counsel appears on their
behalf. 	The district judge, therefore, should dismiss all of
the claims asserted in the complaint on behalf of A.N.-G. and
Justin Holmes.
C. 	Sovereign Immunity (Claims 1-4)
Nicolosi names New Hampshire state courts as defendants:
the NHSC, the New Hampshire Superior Court (“Superior Court”),
the New Hampshire Circuit Court (“NHCC”), and the Derry Family
Court. 	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.
Dist. LEXIS 146160, at *6 (D.N.H. Aug. 28, 2019) (collecting
cases). 	Accordingly, the district judge should dismiss without
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prejudice all of the claims Nicolosi asserts against the state
courts.
D. 	Criminal Conduct (Claim 4)
In Claim 4, Nicolosi asserts that the defendants in this
action 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
Nicolosi cannot state a private cause of action based on the
defendants’ alleged violation of criminal laws, the district
judge should dismiss Claim 4.
E. 	Damages Claims (Claims 1-3)
1. 	Judicial Immunity (Claims 1-3)
Most of the defendants in this action are individual state
court judges or judicial officers; Nicolosi has named four NHSC
justices, forty Superior Court justices, five NHCC judges, four
NHCC administrators, and an NHCC referee as defendants.4 	“[W]hen
4Of these “judicial” defendants, only nine are actually
identified as “wrongdoers” in the narrative of the complaint:
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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. 	Judicial officers, such as referees in child
custody proceedings, plainly performing judicial functions, “so
long as they act in that capacity, . . . ‘share a judge’s
immunity from suit.’” 	D’Angelo v. N.H. Super. Ct., 740 F.3d
802, 808 (1st Cir. 2014) (citation omitted). 	Additionally,
“‘[t]he doctrine of quasi-judicial immunity provides absolute
immunity for those who perform tasks that are inextricably
intertwined with the judicial function.’” 	Id. (citation
omitted).
The conduct of the state court judges or judicial officers
which Nicolosi alleges caused her harm -- specifically,
evaluating the evidence and rendering decisions on disputed
NHCC Judges Kerry Steckowych, Elizabeth Leonard, Robert J.
Foley, and Robert S. Stephen; and NHCC Referee Philip Cross.
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issues in the Derry Family Court Case -- was undertaken while
those individuals were performing judicial functions. 	All of
the state court judges, judicial officers, and judicial
administrative officials named as defendants in Claims 1-3 enjoy
absolute immunity from Nicolosi’s claims for damages. 	The
district judge in this case, therefore, should dismiss all of
the damages claims asserted by plaintiff against each of the
defendant justices, judicial officers, administrative judges,
and state judiciary employees identified as defendants in this
case.
2. 	Private Actors
a. 	Federal Civil Rights (Claims 1, 3(c))
The remaining defendants in this case are Anthony Grillo,
Joan Grillo, and Cheri Grillo Nolan, none of whom are state
employees. 	With certain exceptions not applicable here, private
actors generally cannot be held liable for violations of an
individual’s federal constitutional rights, and 42 U.S.C. § 1983
does not provide a cause of action for purely private conduct
that is alleged to have an impact on a plaintiff’s federal
constitutional rights. 	See Georgia v. McCollum, 505 U.S. 42, 53
(1992) (citing Polk Cty. v. Dodson, 454 U.S. 312 (1981)).
Stripped of legal conclusions, the complaint contains no factual
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assertions indicating that any of those private parties engaged
in state action or colluded with state actors to violate
Nicolosi’s federal constitutional rights. 	Accordingly, as to
Claim 1, which alleges a First Amendment violation, and Claim
3(c), which alleges violations of Nicolosi’s federal civil and
due process rights, Nicolosi has failed to plead sufficient
facts to maintain those claims for damages against the private
party defendants named in this case. 	For that reason, the
district judge should dismiss those damages claims without
prejudice to Nicolosi’s ability to replead and litigate them in
a proper forum.
b. 	Anti-Trust and Trafficking (Claims 3(a)-(b))
Further, to the extent Nicolosi asserts in Claims 3(a) and
3(b) that the private party defendants have violated any anti-
trust law or any law prohibiting human trafficking, she has
failed to plead sufficient facts to support such claims.
Accordingly, the district judge should dismiss Nicolosi’s
damages claims identified above as Claims 3(a) and 3(b), without
prejudice to her ability to replead and litigate those claims in
an appropriate forum, to the extent they are asserted against
Anthony Grillo, Joan Grillo, and Cheri Grillo Nolan.
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E. 	Injunctive Relief, Removal, and Younger Abstention
As to the claims identified in this action as Claims 1-3,
Nicolosi seeks injunctive relief, in the form of an Order
removing the Derry Family Court Case to this court, and an Order
reversing or vacating one or more orders issued in that case.
The claims seeking such relief 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 types of 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
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 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
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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, the underlying state proceeding is a child custody
proceeding, judicial in nature, which remains pending in the
state courts; although Nicolosi has asked this court to enjoin
those proceedings and remove the matter to this court, she has
not taken any of the steps or otherwise satisfied the
requirements set forth in federal law to effect the removal of a
state case. 	See generally 28 U.S.C. § 1446. 	Since the Derry
Family Court Case has not been removed and does not appear
suitable for removal at this late stage of that proceeding,
Younger’s first precondition, that there be an ongoing state
judicial proceeding, is satisfied.
The Derry Family Court Case implicates important state
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interests in the disposition of child custody matters; the
enforcement of state court orders regarding paternity, custody,
and care of a minor; the enforcement of state court orders and
the state appellate court’s disposition of a pending
interlocutory appeal. 	See, e.g., Albert v. Mass. Exec. Office
of Health & Human Serv., No. 17-12403-ADB, 2018 WL 1763634, at
*2, 2018 U.S. Dist. LEXIS 61902, at *4 (D. Mass. Apr. 11, 2018)
(Younger has been extended to include “child welfare and custody
proceedings”). 	This court’s further consideration of the merits
of Claims 1-3 would interfere with the state court’s resolution
of those important state interests. 	Further, Nicolosi has an
adequate opportunity to raise the issues she has asserted here
in the Derry Family Court Case, and she can appeal adverse
orders in that case to the NHSC. 	None of the exceptions to
Younger abstention apply here.
This court’s further consideration of Claims 1-3 is
precluded by Younger, to the extent Nicolosi seeks equitable
relief. 	Dismissal without prejudice is the appropriate means of
abstaining under Younger with respect to her claims for such
relief. 	Accordingly, the district judge should dismiss Claims
1-3, without prejudice, to the extent Nicolosi seeks injunctive
or declaratory relief on those claims.
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III. Request for Preliminary Injunction (Doc. Nos. 1-1, 3)
Nicolosi has filed documents (Doc. Nos. 1-1, 3), which this
court has construed to seek preliminary injunctive relief.
Specifically, Nicolosi seeks an Order from this court vacating
the Derry Family Court’s November 1, 2019 Order which, Nicolosi
alleges, will allow Grillo to have A.N.-G. vaccinated on a
schedule that may be harmful to A.N.-G.
The Younger abstention doctrine bars this court from
granting the injunctive relief Nicolosi seeks. 	Accordingly, the
district judge should deny her requests for preliminary
injunctive relief (Doc. Nos. 1-1, 3) and deny her “Ex Parte
Motion” (Doc. No. 3). 	See Glossip v. Gross, 135 S. Ct. 2726,
2736 (2015) (plaintiff’s showing of likelihood of success on
merits is prerequisite to obtaining preliminary injunctive
relief).
Conclusion
For the foregoing reasons, the district judge should
dismiss all of the claims in the complaint (Doc. No. 1); deny
the Ex Parte Motion (Doc. No. 3); deny plaintiff’s request for
removal of the Derry Family Court Case; deny plaintiff’s request
for other preliminary injunctive relief (Doc. Nos. 1-1, 3), and
close this case. 	Any objections to this Report and
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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).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
November 13, 2019
cc: 	Malinda Nicolosi, pro se
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