Thibodeau v. Yazinski et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Melissa Thibodeau
v. 	Case No. 17-cv-665-JD
John J. Yazinski, and
William Mark Pipkin
REPORT AND RECOMMENDATION
Plaintiff Melissa Thibodeau has filed a complaint (Doc. No.
1) challenging a state court child custody order concerning her
son. 	Because Thibodeau is proceeding in this matter in forma
pauperis, the complaint is before the court for preliminary
review, pursuant to 28 U.S.C. § 1915(e)(2) and LR 4.3(d)(2).
Preliminary Review Standard
In determining whether a pro se pleading states a claim,
the court construes the pleading liberally. 	See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). 	Disregarding any legal
conclusions, the court considers whether the factual content in
the pleading and inferences reasonably drawn therefrom, taken as
true, state a facially plausible claim to relief. 	Hernandez-
Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
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Background
Thibodeau and William Mark Pipkin shared equal custody of
their son, R.P., until November 2017, pursuant to a custody
order issued in In re Pipkin and Tilton/Thibodeau, No. 627-2005-
DM-00262, N.H. 5th Cir. Ct., Fam. Div.-Clarement (“Clarement
Family Court”). 	Thibodeau asserts that twice in October 2017,
Pipkin threatened not to return R.P. to Thibodeau as required by
the then-existing custody order. 	Both times, Thibodeau sought
ex parte relief in the Claremont Family Court. 	Both times,
Claremont Family Court Judge John Yazinski ordered Pipkin to
comply with the existing custody order.
Thibodeau alleges that shortly thereafter, Pipkin “stole”
R.P. and refused to return him to Thibodeau’s custody. 	Pipkin
then sought primary custody of R.P. in the Claremont Family
Court, and a hearing on that request was scheduled in November
2017. 	Thibodeau asserts that, in connection with that hearing,
Pipkin filed paperwork in the court containing false statements
designed to influence the court to grant Pipkin custody. 	As a
result of Pipkin’s false statements, Thibodeau claims that Judge
Yazinski improperly awarded Pipkin primary custody of R.P.
without first proving that Thibodeau was an unfit parent.
Thibodeau now asserts that Judge Yazinski violated her
rights in the child custody proceedings by removing R.P. from
her custody in the absence of proof that Thibodeau had abused or
neglected R.P., refusing to recuse himself from her custody case
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despite his demonstrated bias against Thibodeau, and ordering
Thibodeau to pay $1000 for the cost of a guardian ad litem for
R.P., knowing she lives on social security insurance benefits.
Thibodeau also asserts claims alleging that Pipkin caused her to
wrongly be deprived of custody of R.P., and improperly obtained
primary custody of R.P., by making false statements during the
Claremont Family Court proceedings. 	Thibodeau seeks damages
from Judge Yazinski, and an order from this court: prohibiting
Judge Yazinski from presiding over any case in any court in the
future, vacating Judge Yazinski’s orders and granting Thibodeau
full custody of R.P., transferring the child custody matter to
this court, and fining Pipkin for lying in the child custody
proceedings.
Discussion
I. 	Claims Against Judge Yazinski
Judges have “absolute immunity from civil liability for any
normal and routine judicial act.” 	Cok v. Cosentino, 876 F.2d 1,
2 (1st Cir. 1989) (citing Stump v. Sparkman, 435 U.S. 349, 356–
57 (1978)). 	“[Judicial] immunity applies no matter how
erroneous the act may have been, how injurious its consequences,
how informal the proceeding, or how malicious the motive. 	Only
judicial actions taken in the clear absence of all jurisdiction
will deprive a judge of absolute immunity.” 	Cok, 876 F.2d at 2
(citations omitted).
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Child custody determinations are “normal and routine”
judicial acts. 	Further, even accepting as true, for purposes of
preliminary review, Thibodeau’s assertions that Judge Yazinski
erred in relying on Pipkin’s false statements, and exhibited
bias against Thibodeau, she has not alleged alleged any facts
indicating that Judge Yazinski acted “in the clear absence of
all jurisdiction.” 	Cok, 876 F.2d at 2. 	Accordingly, Judge
Yazinski is entitled to judicial immunity from plaintiff’s
claims for damages, and the district judge should dismiss those
claims against Judge Yazinski on that basis.
To the extent plaintiff asserts claims for injunctive
relief under 42 U.S.C. § 1983 against Judge Yazinski, that
statute bars claims asserted against judges for actions taken in
their judicial capacity, like those asserted here, “unless a
declaratory decree was violated or declaratory relief was
unavailable.” 	42 U.S.C. § 1983. 	There is no suggestion in the
pleadings that a declaratory decree has been violated, or that
declaratory relief has been unavailable. 	See Adames v. Fagundo,
198 F. App’x 20, 22 (1st Cir. 2006). 	Accordingly, the
injunctive relief claims asserted under § 1983 against Judge
Yazinski should be dismissed.
II. 	Claims Against William Mark Pipkin
Thibodeau’s claims against Pipkin are cognizable, if at
all, under the diversity jurisdiction of this court. 	It is
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possible that the amount in controversy could exceed $75,000.00,
although that fact is not pleaded. 	See 28 U.S.C. § 1332(a)(1).
“[T]he domestic relations exception divests federal courts
of jurisdiction over ‘a narrow range of [cases implicating]
domestic relations issues’ that would otherwise meet the
requirements for federal diversity jurisdiction under 28 U.S.C.
§ 1332(a).” 	Irish v. Irish, 842 F.3d 736, 740 (1st Cir. 2016).
“[I]n general, lawsuits affecting domestic relations . . . are
not within the exception unless the claim at issue is one to
obtain, alter or end a divorce, alimony or child custody
decree.” 	Id. at 741 (emphasis in original). 	“The domestic
relations exception ‘governs claims over [domestic relations
decrees] even where they are cloaked in the “trappings” of
another type of claim.’” 	Id. at 742 (internal citations
omitted).
Assuming, without deciding, that Thibodeau could otherwise
meet the requirements of a diversity action, her claims against
Pipkin attempt to alter the existing Claremont Family Court
child custody order, to award her full custody of R.P. 	To the
extent Thibodeau seeks other relief concerning Pipkin, such
relief is either not within this court’s jurisdiction to grant
in this case, or is not based on a claim upon which relief can
be granted. 	Cf. Linda R.S. v. Richard D., 410 U.S. 614, 619
(1973) (“a private citizen lacks a judicially cognizable
interest in the prosecution or nonprosecution of another”).
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Thibodeau cannot invoke the diversity jurisdiction of this
court as to her claims against Pipkin, as claims seeking an
amended child custody decree are excepted from such
jurisdiction. 	This court therefore lacks jurisdiction over
Thibodeau’s claims against Pipkin to that extent, and the
district judge should dismiss those claims, without prejudice to
Thibodeau’s ability to assert them in a state court of competent
jurisdiction.
Conclusion
For the foregoing reasons, the district judge should
dismiss the complaint 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). 	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
June 18, 2018
cc: 	Melissa Thibodeau, pro se
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