Mullen v. Kissell

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Martha Mullen
v. 	Case No. 19-cv-1292-SM
Edward J. Kissell Jr.
REPORT AND RECOMMENDATION
Before the court is Plaintiff Martha Mullen’s complaint
(Doc. No. 1) and complaint addenda (Doc. Nos. 2, 4-6, 8-13),
seeking relief from decisions made in divorce and child custody
proceedings between Mullen and the defendant, Mullen’s ex-
husband Edward J. Kissell Jr., by the New Hampshire Circuit
Court, Sixth Circuit-Family Division-Concord (“Concord Family
Court”), and the New Hampshire Supreme Court (“NHSC”). 	Because
Mullen is proceeding pro se and in forma pauperis, this matter
is before the court for preliminary review pursuant to 28 U.S.C.
§ 1915(e)(2) and LR 4.3(d)(2).
Background
Mullen and Kissell litigated the terms of their divorce and
of the custody of their two children in In re Kissell, No. 629-
2012-DM-00596, in Concord Family Court, and in the NHSC, in In
re Kissell, No. 2014-0825, 2016 WL 3465675, at *1 (N.H. Mar. 16,
2016). 	The record indicates that, after the state courts
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entered judgment in the divorce and custody case, the parties
continued to file documents in the Concord Family Court and NHSC
in those cases. 	The filings in this case do not make clear the
current status of those matters, specifically, whether there is
any continuing litigation concerning the parties’ custody and
parenting of their children or concerning the financial
relationship between the parties. 	Mullen has brought this suit
challenging the results of those state court proceedings and/or
seeking reconsideration of rulings made in the state courts.
Preliminary Review Standard
This court conducts a preliminary review of complaints
filed in forma pauperis. 	See LR 4.3(d)(2); 28 U.S.C. § 1915(e).
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). 	The court may dismiss some or all of the claims in
such a complaint if, among other things, the court 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); LR 4.3(d)(2).
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Discussion
I. 	Federal Claims
A. 	Fourteenth Amendment Claim
Mullen alleges that the defendant, her ex-husband, violated
her Fourteenth Amendment right or protected liberty interest in
parenting her minor children. 	With certain exceptions not
applicable here, private actors 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)). 	The complaint contains no factual
assertions suggesting that her ex-husband took any action under
color of state law or may otherwise be treated as a state actor,
for purposes of finding him potentially liable for an alleged
violation of Mullen’s federal rights. 	Accordingly, the district
judge should dismiss Mullen’s claim that her ex-husband violated
her parental rights.
B. 	Criminal Conduct
Mullen asserts that “[t]he federal court system may get
involved in criminal acts from the family division . . ..” 	Doc.
No. 2, at 1. 	Mullen cannot state a private cause of action
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based on the defendant’s alleged criminal conduct, however, as
“[p]rivate 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 this assertion does not provide a basis for relief in
this action, the district judge should dismiss Mullen’s claims
based on the defendant’s alleged criminal conduct.
II. 	State Law Claims
All of Mullen’s remaining claims are challenges to the
decisions made in the state courts in her divorce and custody
cases. 	Mullen has failed to state any cognizable federal claim
in this action arising out of those matters, and she has also
failed to assert the facts necessary to invoke this court’s
original, diversity jurisdiction over such state law claims
under 28 U.S.C. § 1332(a)(1), as she has affirmatively alleged
that she and her ex-husband are both New Hampshire residents.
To the extent Mullen has asserted any actionable claim
arising under state law to challenge the decisions made in the
state courts in her divorce and child custody cases, this court
should decline to exercise supplemental jurisdiction over such
claims. 	See 28 U.S.C. § 1367(c)(3). 	The district judge should
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dismiss those state law claims without prejudice to Mullen’s
ability to file a new action in the state courts or otherwise
litigate those state law claims in a court of competent
jurisdiction.
Conclusion
For the foregoing reasons, the district judge should
dismiss the complaint in its entirety for failure to state a
federal claim upon which relief may be granted, without
prejudice to the plaintiff’s ability to assert her state law
claims in a state court of competent jurisdiction. 	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).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
January 24, 2020
cc: 	Martha Mullen, pro se
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