Kelley et al v. Russell et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Karyn M. Kelley
v. 	Case No. 20-cv-162-PB
Charles A. Russell, et al.
REPORT AND RECOMMENDATION
Plaintiff Karyn M. Kelley, proceeding pro se, has filed an
action under 42 U.S.C. § 1983 alleging that the defendants —
Charles A. Russell, Daniel C. Proctor, and, in their official
capacity, Merrimack Police Department (“MPD”) Officers
R. McKenzie, J. Dudash, and A. Groves — violated her
constitutional rights. 	Her amended complaint (Doc. No. 17) is
before the magistrate judge for preliminary review pursuant to
28 U.S.C. § 1915(e)(2) and LR 4.3(d)(2). 	As discussed below,
Kelley’s amended allegations cannot sustain her constitutional
claims for relief. 	Additionally, her claims cannot be saved by
further amendment with additional facts. 	The district judge
should thus dismiss Kelley’s amended complaint in its entirety.
I. 	Preliminary review standard
The court conducts a review of cases filed by pro se
plaintiffs to determine, among other things, whether the amended
complaint states any claim upon which relief may be granted.
See 28 U.S.C. § 1915(e)(2); LR 4.3(d)(2). 	To survive
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preliminary review, the amended 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 treats as true all well-pleaded
factual allegations and, after disregarding conclusory
allegations, construes all reasonable inferences in plaintiff’s
favor. 	See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12
(1st Cir. 2011). 	In doing so, the court may consider “documents
incorporated by reference in [the amended complaint], matters of
public record, and other matters susceptible to judicial
notice,” including publicly recorded documents from state court
judicial proceedings. 	Giragosian v. Ryan, 547 F.3d 59, 65 (1st
Cir. 2008) (citations omitted). 	The court may dismiss a pro se
plaintiff’s case at any time if the amended complaint fails to
state a claim on which relief may be granted, the defendant is
immune from the relief sought, or the action is frivolous or
malicious. 	See 28 U.S.C. § 1915(e)(2).
II. 	Background
State-court litigation underlying Kelley’s claims
In 2010, Mary Feeney — a non-party in this litigation —
ended “a long-term relationship” with Kelley and filed suit in
Hillsborough County Superior Court to resolve issues of common
property between the two. 	See Order, Feeney v. Kelley, No. 216-
210-EQ-00193 (N.H. Super. Ct., Hillsborough Cty., N.D. June 29,
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2010), available at Doc. #1045733, Registry of Deeds,
Hillsborough County. 1 	After four years of litigation, the
Superior Court held a bench trial to resolve Feeney and Kelley’s
property claims. 	On October 20, 2014, the Superior Court
entered a final verdict ordering, in part, a 50/50 partition of
real property located at 62 Indian Rock Road, Merrimack, New
Hampshire (“Indian Rock Road Property” or “Property”). 	See
Feeney v. Kelley, No. 2015-0049, slip op. at 1-3 (N.H. Oct. 9,
2015). 	Kelley appealed this verdict to the New Hampshire
Supreme Court (“NHSC”). 	The NHSC affirmed the verdict, however,
after concluding that the Superior Court properly weighed the
equitable considerations for a court-ordered partition. 	Id.
Following this appeal, the Superior Court appointed a non-
party real estate commissioner – defendant Russell — to sell the
Property. 	See Feeney v. Kelley, No. 2017-0166 (N.H. Jan. 16,
2018). 	Kelley filed numerous post-trial motions thereafter to
reverse the Superior Court’s bench-trial findings and its post-
1 It is “well-accepted that federal courts may take judicial
notice of proceedings in other courts if those proceedings have
relevance to the matters at hand.” 	Kowalski v. Gagne, 914 F.2d
299, 305 (1st Cir. 1990). 	The court therefore takes judicial
notice of the related Superior Court proceeding and the publicly
available documents filed therein “to establish the existence of
the [related] litigation, what claims were asserted, and what
issues were argued and decided.” 	Barnstable Cty. v. 3M Co., No.
CV 17-40002, 2017 WL 6452245, at *4 (D. Mass. Dec. 18, 2017)
(internal citations omitted); see also United States v. Mercado,
412 F.3d 243, 247 (1st Cir. 2005) (taking judicial notice of
state court proceeding’s docket, which was not part of record).
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trial efforts to grant relief for Feeney. 	The Superior Court
denied most of these motions. 	Id. 	Feeney, in turn, moved to
have Kelley vacate the Property. 	Dkt. Sheet Index #77, Feeney
v. Kelley, No. 216-210-EQ-00193. 	The Superior Court conducted a
hearing on the motion to vacate and, in December 2016, granted
Feeney’s request for relief. 	Kelley, however, avoided the
immediate impact of this ruling by filing a second appeal to the
NHSC, which stayed the Superior Court’s order to vacate until
the NHSC denied her appeal in 2018. 	Feeney v. Kelley, No. 2017-
0166 (N.H. Jan. 16, 2018).
In March 2019, the Superior Court again ordered Kelley to
vacate the Indian Rock Road Property. 	See Order, Feeney v.
Kelley, No. 216-210-EQ-00193 (Doc. No. 17, at 13) (attached to
Am. Compl. as Ex. A) (“August 19, 2019 Order”) (briefly
summarizing procedural history, including March 2019 Order).
Again, Kelley did not comply. 	Instead, she filed for bankruptcy
in the U.S. Bankruptcy Court for the District of New Hampshire,
resulting in another stay of the Superior Court action. 	Id.;
see also In re Kelley, No. 19-bk-10567 (ECF No. 1). 2 	In
response, Feeney filed a motion in the Bankruptcy Court seeking
relief from the automatic bankruptcy stay so that she could
proceed with the partition and sale of the Indian Rock Road
2 The court takes judicial notice of the existence of the
related bankruptcy litigation, the claims asserted therein, and
the issues decided by the Bankruptcy Court in its publicly
available written memoranda and opinions.
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Property. 	In re Kelley, No. 19-bk-10567 (ECF No. 14). 	On June
25, 2019, Bankruptcy Judge Peter Cary granted Feeney’s request
over Kelley’s opposition. 	Id. (ECF No. 38). 	Per the terms of
Judge Cary’s Order:
Mary Feeney may proceed in the in rem proceeding for
the partition of the property, to receive any
liquidated proceeds of the premises (she may be
entitled to) known as 62 Indian Rock Road, Merrimack,
N.H., in the consolidated cases pending in the
Hillsborough County Superior Court . . . . 	Further
and for purposes of clarification, in rem relief is
also granted to proceed with any appeal(s) arising out
of the dispute over the in rem partition of the
property, in the New Hampshire Supreme Court, stemming
from said consolidated proceeding . . . .
Id.
In August 2019, the Superior Court, upon a motion by
Feeney, reactivated its in rem proceedings to partition and sell
the Property, despite Kelley’s objections, given the Bankruptcy
Court’s order “explicitly permit[ing]” Feeney to proceed. 	See
August 19, 2019 Order (Doc. No. 17, at 13). 	Kelley responded by
filing a motion to close the Superior Court proceeding as
discharged through Chapter 7 bankruptcy, a motion for recusal,
and a motion for a new trial. 	See Index #289 & #290, Feeney v.
Kelley, No. 216-210-EQ-193. 	Each of these motions was opposed,
found to be meritless, and subsequently denied.
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Dispossession of the Indian Rock Road Property
On September 11, 2019, Feeney, through her post-trial
attorney – defendant Proctor – filed a motion for contempt and
for an instruction directing the real estate commissioner –
defendant Russell – to take immediate possession of the
Property. 	Kelley did not timely file an objection. 	The
Superior Court granted Feeney’s motion two weeks later. 	See
Order, Feeney v. Kelley, No. 216-210-EQ-193 (Doc. No. 17, at 23)
(attached to Am. Compl. as Ex. D) (“September 25, 2019 Order”).
The Superior Court ruled that:
1. 	Karyn Kelley is dispossessed of the premises known as
62 Indian Rock Road, Merrimack, New Hampshire . . . .
Any further entry upon the premises, without the
approval of this Court or, the permission of the
Commissioner, Charles A. Russell, Esq.
(“Commissioner”), shall constitute civil and/or
criminal trespass.
2. 	Karyn Kelley shall surrender the keys to the premises
. . . to either the Commissioner and/or the Town of
Merrimack Police Department.
3. 	The Commissioner shall take possession of [the
Property] as soon as practical. 	Upon request of the
Commissioner, a member of the Sherriff’s Department
shall assist the Commissioner in taking possession
. . ., just as would occur in an eviction under a Writ
of Possession.
Id.
Days later, after the defendants had entered the Property,
see MPD Officers Formal Report (Doc. No. 17, at 25-26) (attached
to Am. Compl. as Ex. E), Kelley late-filed an objection to
Feeney’s September 11, 2019 motion. 	Additionally, Kelley filed
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a motion for “illegally [sic] entry, illegally [sic] seizure of
real and personal property . . . civil contempt and criminal
trespass,” as well as multiple motions essentially seeking to
prevent the real estate commissioner from selling the Property.
See Dkt. Sheet, Feeney v. Kelley, No. 216-210-EQ-193. 	The
Superior Court ultimately denied each of these motions.
Further, it refused to alter its September 25, 2019 ruling.
In January 2020, the Superior Court approved a proposed
order authorizing Russell, as real estate commissioner, to
execute and sign the deed selling the Indian Rock Road Property
to a buyer. 	See Jan. 22, 2020 Notices to Cease and Desist from
Kelley to Russell and Proctor (Doc. No. 17, at 27-28) (attached
to Am. Compl. as Ex. F)). 	The following month, the Superior
Court entered an order clearing title to the Indian Rock Road
Property. 	To date, Kelley has continued to file numerous
motions and appeals opposing the court-ordered sale and the
court-ordered distributions of proceeds obtained from the sale
of the Indian Rock Road Property. 	To date, none of Kelley’s
efforts to that end have been successful.
Kelley’s claims in this case
In the amended complaint, Kelley asserts two claims arising
from her dispossession of the Indian Rock Road Property, for
which she seeks damages, interests, costs, and equitable relief.
In Count 1, Kelley alleges that defendants Russell and Proctor
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(“Attorney Defendants”) violated her Fifth and Fourteenth
Amendment due process rights under the U.S. Constitution by
filing, “without legal excuse,” a motion in Hillsborough County
Superior Court to have Kelley vacate the Indian Rock Road
Property. 	Am Compl. (Doc. No. 17) ¶ 13 (citing August 19, 2019
Order). 	Kelley contends that because she filed for bankruptcy
in federal bankruptcy court, the Superior Court “could not
grant” the Attorney Defendants’ request to lift the stay of
proceedings or allow Russell, as court-appointed real estate
commissioner, to take immediate possession of the Property. 	Id.
Additionally, she argues that Feeney was not entitled to
proceeds from the sale of the Property because Kelley originally
listed Feeney’s claim as a debt to be discharged by bankruptcy.
Id. ¶¶ 14, 17. 	Kelley advances both contentions despite the
June 25, 2019 Bankruptcy Court Order explicitly permitting the
Superior Court to proceed in its “in rem proceeding for the
partition” and court-sanctioned sale of the Property. 	See id.
¶ 16 (implicitly conceding existence of order); see also Aug.
10, 2019 Order (Doc. No. 17, at 13) (quoting June 25, 2019
Bankruptcy Court Order). 	Kelley further asserts that she was
deprived of due process because the Superior Court granted
Feeney’s motions to vacate and to take immediate possession
without conducting a live hearing, and also denied her request
for an interlocutory appeal “to have the New Hampshire Supreme
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Court decide if the State Court’s docket was discharged in
bankruptcy.” 	Am. Compl. (Doc. No. 17) ¶¶ 18-19.
In Count 2, Kelley alleges that on September 28, 2019, all
defendants violated her Fourth Amendment rights under the U.S.
Constitution by illegally entering, searching, and seizing the
Property and by illegally videotaping her possessions. 	Am.
Compl. (Doc. No. 17) ¶ 21. 	Kelley argues that the defendants’
failure to have the Sheriff’s Department present when taking
possession of her residence deviated from the terms of the
Superior Court’s “unlawful” September 25, 2019 Order. 	Id. 	She
contends that, as a result of both this deviation and the
unlawful nature of the state-court order, the defendants
“illegally searched, seized, and took possession of all real and
personal property” she owned. 	Id. ¶ 22. 	Additionally, she
argues that the defendants are not immune from suit because they
“knew” from public records that the Superior Court had awarded
Kelley the residence, id. ¶ 30 (citing Doc # 5052189,
Hillsborough Country Registry of Deeds), and “knew of other
contracts” in which Feeney had “waived all interest” in the
Indian Rock Road Property, id. ¶ 34 (citing various deeds and
agreements attached to the Am. Compl. as Ex. H).
The court notes that Kelley’s allegations that she was
awarded sole ownership of the Property, despite the Superior
Court’s 2015-2020 orders, appear to be disingenuous. 	For
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example, the public record cited by Kelley to support her
possessory interest in the Property – a Superior Court Order
from November 19, 2010 – did not award Kelley the residence.
Rather, it simply vacated a deed that transferred ownership of
the Property from Feeney and Kelley to Kelley’s brother, which
was originally executed in 2001 (purportedly for estate planning
purposes in the event Feeney and Kelley died at the same time),
and was officially recorded by Kelley nearly nine years later,
once Feeney filed suit in Superior Court. 	See Order, Feeney v.
Kelley, No. 216-210-EQ-193 (recorded as Doc. #8014066 with the
Hillsborough Cty. Register of Deeds). 	Likewise, on March 21,
2019, the Superior Court found that one of the “other contracts”
attached to Kelley’s amended complaint at Exhibit H – a June
2016 Warranty Deed – was “recorded well after the Court’s final
order declaring the parties to be joint owners of the premises,”
and therefore was “fraudulent and void as a matter of law.” 	Id.
III. Discussion
The court finds that Kelley’s amended complaint should be
dismissed as it fails to state a claim upon which relief may be
granted in Count 1 or Count 2. 	See Fed. R. Civ. P. 12(b)(6).
Wrongful eviction
In Count 1, Kelley alleges that the Attorney Defendants
violated her federal constitutional rights by filing a motion in
Hillsborough County Superior Court that resulted in her being
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wrongfully evicted from the Indian Rock Road Property. 	The
court construes her allegations as an invocation of her
Fourteenth Amendment, but not her Fifth Amendment, due process
rights. 	See U.S. Const. amend V. (restricting the federal
government and its agents, not state government agents).
The Fourteenth Amendment’s Due Process Clause provides that
no state shall “deprive any person of life, liberty, or
property, without due process of law.” 	“Due process is flexible
and calls for such procedural protections as the particular
situation demands.” 	Mathews v. Eldridge, 424 U.S. 319, 334
(1976) (internal citation omitted). 	To prevail on a procedural
due process claim, a plaintiff must show that he or she “has a
protected interest in life, liberty, or property, and that the
defendants deprived him or her of that protected interest
without constitutionally adequate process.” 	See Foley v. Town
of Lee, 871 F. Supp. 2d 39, 47 (D.N.H. 2012) (citing Garcia–
Rubíera v. Fortuño, 665 F.3d 261, 270 (1st Cir. 2011); Air
Sunshine, Inc. v. Carl, 663 F.3d 27, 34 (1st Cir. 2011)). 	“To
determine what process is constitutionally due,” courts
generally balance three factors:
First, the private interest that will be affected by
the official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the
Government's interest, including the function involved
and the fiscal and administrative burdens that the
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additional or substitute procedural requirement would
entail.
Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 66 (1st Cir.
2019) (quoting Mathews, 424 U.S. at 335).
Here, Kelley has sufficiently alleged for purposes of
preliminary review a general property interest and a privacy
interest in real and personal property located at 62 Indian Rock
Road before she was dispossessed of such interests by the
Superior Court’s September 25, 2019 Order. 	Nevertheless, her
allegations, as supplemented by her attached exhibits and by
matters susceptible to judicial notice, fail to show that the
defendants (or the Superior Court) dispossessed her of these
protected interests without constitutionally adequate process.
The fundamental requirement of constitutionally adequate
due process is the opportunity to be heard “at a meaningful time
and in a meaningful manner.” 	Mathews, 424 U.S. at 333 (internal
citation omitted). 	As noted above, Kelley was given ample
opportunity to be heard concerning her interests in the Property
during her lengthy state-court litigation against Feeney. 	In
2014, the Superior Court conducted a full bench trial at which
Kelley, with the aid of retained counsel, was afforded a full
and fair opportunity to press her claims and defenses. 	The
Superior Court ultimately resolved the conflicts in the
testimony presented, the credibility of witnesses, and the
weight of evidence against Kelley’s claim that she was the sole
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owner of the Property by ordering a 50/50 partition of the
Property and a forced sale. 	When Kelley appealed this verdict
to the NHSC, that Court affirmed the trial court’s verdict,
rejecting Kelley’s arguments on the papers before it. 	Feeney v.
Kelley, No. 2015-0049 (N.H. Oct. 9, 2015).
Though Kelley alleges that “no hearing took place” before
she was required to vacate the Property, the docket sheet for
the state-court litigation indicates that, when Feeney moved to
have Kelley vacate the property in September 2016, the Superior
Court did in fact hold a live hearing, at which Kelley was
afforded the opportunity to be heard. 	See Dkt. Sheet Index #77,
Feeney v. Kelley, No. 216-210-EQ-00193. 	It was only after
considering Kelley’s written and oral arguments that the
Superior Court ruled against her. 	Though Kelley’s subsequent
appeal to the NHSC, her post-trial procedural motions, and her
filing for bankruptcy temporarily suspended the Superior Court’s
ruling, they did not change the fact that Kelley would
eventually be required to vacate the Property if and when these
appeals and motions were resolved against her – which they were.
Kelley has not shown that the Superior Court, after
affording her these opportunities to be heard, was required to
hold additional live hearings on Feeney’s procedural motions to
lift the bankruptcy stay and to have the real estate
commissioner take immediate possession of the property. 	It is
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beyond dispute that litigants do not have a constitutional right
to a hearing on every motion filed in court. 	See, e.g.,
Stevenson v. Bales, 986 F.2d 1429 (10th Cir. 1993); Goodpasture
v. Tenn. Valley Auth., 434 F.2d 760, 764 (6th Cir. 1970). 	“A
hearing is required only if the movant makes a sufficient
threshold showing that material facts are in doubt or dispute,
and that such facts cannot reliably be resolved on a paper
record.” 	United States v. Staula, 80 F.3d 596, 603 (1st Cir.
1996) (criminal case). 	Kelley’s allegations fail to explain why
the Superior Court could not reliably resolve these motions on
the paper record before it without a hearing, or how additional
procedural safeguards, such as a live hearing, would have led to
a different result. 	See id. at 603. 	Furthermore, the court is
not aware of any authority suggesting Kelley was entitled to
live hearings or interlocutory appeals for procedural motions
intended to give effect to pre-existing orders for relief,
especially after being afforded a live hearing before the
Superior Court on Feeney’s motion to vacate in 2016, and live
hearing before the Bankruptcy Judge on Feeney’s motion for
relief from stay in 2019, see Notice of Rescheduled Hr’g, In re
Kelley, No. 19-bk-10567 (ECF No. 29).
Accordingly, Kelley’s wrongful eviction claim (Count 1)
fails to allege any actionable Fourteenth Amendment claim on
which the relief she seeks could be granted. 	For the reasons
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stated above, this claim cannot be saved by amendment with
additional facts. 	The district judge should therefore dismiss
Count 1 of the amended complaint.
Unlawful entry, search, seizure, and videotaping
In Count 2, Kelley asserts that the defendants violated her
Fourth Amendment rights against unlawful searches and seizures
under the U.S. Constitution by illegally entering, searching,
and seizing her purported residence – the Property. 	Her Fourth
Amendments rights are incorporated against the State of New
Hampshire and its agents under the Fourteenth Amendment. 	See
Mapp v. Ohio, 367 U.S. 643 (1961).
The Fourth Amendment protects “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” 	U.S. Const. amend. IV. 	To
sufficiently plead a Fourth Amendment search claim, a
plaintiff’s non-conclusory allegations must show that he or she
has a “reasonable” or “legitimate” expectation of privacy in the
place or thing searched, and that the search of the place or
thing was unreasonable. 	Smith v. Maryland, 442 U.S. 735, 740
(1979). 	Similarly, to sufficiently plead a Fourth Amendment
seizure claim, a plaintiff’s complaint must allege (1) some
meaningful interference with the plaintiff’s possessory
interests in his or her property and (2) that the “seizure” of
the property was unreasonable. 	Soldal v. Cook Cty., Ill., 506
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U.S. 56, 61–62 (1992); Gold v. Poccia, No. CV 17-104WES, 2018 WL
5288729, at *5 (D.R.I. June 29, 2018), R&R adopted, No. CV 17-
104 WES, 2018 WL 4521940 (D.R.I. Sept. 21, 2018).
Kelley’s allegations, as supplemented by her attached
exhibits and the judicial records she refers to therein, fail to
carry her pleading burden for either type of claim. 	With
respect to the “search” claim, the September 25, 2019 Order
attached as Exhibit D to Kelley’s amended complaint establishes
that Kelley no longer enjoyed an objectively reasonable
expectation of privacy in the Indian Rock Road Property at the
time Russell and the MPD Officers entered the Property on
September 29, 2019. 	See Sept. 25, 2019 Order (Doc. No. 17, at
23). 	In that Order, the Superior Court explicitly dispossessed
Kelley of the Property and forbid her from entering the Property
without the Court or Russell’s prior approval. 	Id. 	Moreover,
the Order authorized Russell to take physical possession of the
Property. 	Thus, even if Kelley harbored some lingering
reasonable expectation of privacy in the Property after that
order issued, see, e.g., Rakas v. Illinois, 439 U.S. 128 (1978)
(explaining that a reasonable expectation of privacy turns in
large part on whether a person has a possessory interest or the
ability to exclude others from the place searched), she could
not lawfully exclude Russell from entering and searching the
Property, or prevent him from bringing along a police escort
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when he engaged in these court-sanctioned acts, see, e.g.,
United States v. Matlock, 415 U.S. 164, 171 (1974) (Permission
to search may be obtained from a third party who possesses
common authority over the premises.).
Additionally, Kelley’s allegations fail to show how any
“search” or “seizure” of the Property was unreasonable. 	Despite
her conclusory allegations to the contrary, the September 25,
2019 Order did not require that the Merrimack Sheriff’s
Department be present when Russell, as real estate commissioner,
took physical possession of the Property. 	Instead, the Order
simply instructs the Sherriff’s Department to assist Russell in
taking possession in the event Russell so requested. 	See Sept.
25, 2019 Order (Doc. No. 17, at 23). 	For similar reasons,
Kelley’s allegations fail to show how the presence of MPD
Officers, as opposed to the Sherriff’s Department, transformed
the otherwise reasonable search and seizure of the Property into
an act that violated the protections of the Fourth Amendment,
particularly in light of the September 25, 2019 Order’s
unambiguous decree that she was dispossessed of her right to
control the Property.
Finally, to the extent Kelley contends that the defendants’
entry onto the Property on September 29, 2019 was unlawful
because the September 25, 2019 Order was “unjust,” her amended
claims are precluded by the doctrine of collateral estoppel,
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which bars a litigant from litigating an issue that was fully
and fairly adjudicated either in an earlier federal or state-
court proceeding. 3 	See Robb Evans & Assocs., LLC v. United
States, 850 F.3d 24, 31 (1st Cir. 2017); Johnson v. Mahoney, 424
F.3d 83, 93 (1st Cir. 2005); see also Garod v. Steiner Law
Office, PLLC, 170 N.H. 1 (2017) (explaining that the New
Hampshire courts give preclusive effect to an issue decided by a
state-court if: “(1) the issue subject to estoppel is identical
in each action; (2) the first action resolved the issue finally
on the merits; (3) the party to be estopped appeared in the
first action or was in privity with someone who did; (4) the
party to be estopped had a full and fair opportunity to litigate
the issue; and (5) the finding at issue was essential to the
first judgment”).
As discussed above, Kelley had a full and fair opportunity
to litigate the issues underlying the Superior Court’s September
25, 2019 Order, including whether Feeney possessed a shared
property interest in the Indian Rock Road Property, whether it
was necessary to sell the Property upon the court-ordered 50/50
partition, and whether Kelley’s filing of bankruptcy deprived
Feeney of the right to pursue her court-awarded claims against
3 Similarly, “under what has come to be known as the Rooker-
Feldman doctrine, lower federal courts are precluded from
exercising appellate jurisdiction over final state-court
judgments.” 	See, e.g., Lance v. Dennis, 546 U.S. 459, 463
(2006).
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the Indian Rock Road Property, throughout the course of her
state-court and federal bankruptcy proceedings. 	The
Hillsborough County Superior Court ruled against Kelley on each
of these issues after substantial motions practice and several
live hearings. 	The New Hampshire Supreme Court affirmed the
Superior Court’s orders partitioning and selling the Property.
And the Bankruptcy Court explicitly granted Feeney relief from
the bankruptcy stay so that she could proceed with the partition
and sale of the Property. 	Each prerequisite for collateral
estoppel is satisfied. 	As such, Kelley is barred from
revisiting the substance of these issues through either a
procedural due process or a § 1983 action in this court.
In sum, Kelley’s unlawful search and seizure claim
(Count 2) fails to allege any actionable Fourth Amendment
violation on which the relief Kelley seeks could be granted and
cannot be saved by amendment with additional facts.
Accordingly, the district judge should dismiss Count 2 of the
amended complaint.
IV. 	Conclusion
For the foregoing reasons, the district judge should dismiss
Kelley’s amended complaint (Doc. No. 17) in its entirety. 	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). 	Failure to file objections within the
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specified time waives the right to appeal the District Court’s
order. 	See United States v. De Jesus-Viera, 655 F.3d 52, 57
(1st Cir. 2011); Sch. Union No. 37 v. United Nat. Ins. Co., 617
F.3d 554, 564 (1st Cir. 2010).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
December 28, 2020
cc: 	Karyn M. Kelley, pro se
Case 1:20-cv-00162-PB Document 18 Filed 12/28/20 Page 20 of 20