Mullen v. Kissell et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Martha Mullen
v. 	Case No. 20-cv-473-SM
Edward J. Kissell et al.
REPORT AND RECOMMENDATION
Plaintiff Martha Mullen, appearing pro se, has sued her ex-
husband, Edward J. Kissell, and several “teacher witnesses”
seeking relief for alleged transgressions related to her divorce
from Mr. Kissell and the schooling of her minor children. 	See
Complaint (Doc. No. 1) and Mot. for Additional Information (Doc.
No. 4).1 	The complaint is before this magistrate judge for
preliminary review, pursuant to 28 U.S.C. § 1915(e)(2) and LR
4.3(d)(1). 	For the reasons that follow, the district judge
should dismiss this lawsuit.
1This is plaintiff’s third suit in this court against
Kissell seeking relief from rulings or enforcement of orders
from their divorce case. 	The prior cases were dismissed for
failure to state a federal claim for which relief may be
granted. 	See Mullen v. Kissell, No. 20-cv-347-PB (“Mullen II”)
(D.N.H. Apr. 13, 2020) (ECF No. 7), approving Report and
recommendation (D.N.H. Mar. 26, 2020) (ECF No. 2); Mullen v.
Kissell, No. 19-cv-1292-SM (“Mullen I”) (D.N.H. Feb. 19, 2020)
(ECF No. 20), approving Report and Recommendation (D.N.H. Jan.
14, 2020) (ECF No. 14).
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Preliminary Review Standard
The magistrate judge conducts a preliminary review of
pleadings, like Mullen’s, which are filed in forma pauperis.
See LR 4.3(d). 	The magistrate judge may recommend to the
district judge that one or more claims be dismissed 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). 	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.’” 	Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted). 	The court treats as true all
well-pleaded factual allegations, and construes reasonable
inferences in plaintiff’s favor. 	See Ocasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
Discussion
Plaintiff’s complaint is disorganized and the nature of her
claims is not clear. 	The two-page complaint form is accompanied
by more than ninety pages of documents that appear to have been
part of plaintiff’s New Hampshire divorce case. 	In her motion
for additional information (Doc. No. 4), which the court
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construes as a supplement to her complaint, plaintiff requests
immediate custody of her children and ownership of the marital
home.2 	But as this court previously found, New Hampshire “law is
well settled that jurisdiction in divorce proceedings is a
continuing one with respect to all subsequent proceedings which
arise out of the original cause of action.” 	Daine v. Daine, 951
A.2d 133, 135 (N.H. 2008) (citing Stritch v. Stritch, 	213 A.2d
426, 429 (N.H. 1965) (quotation omitted)). 	After granting a
divorce, the court retains jurisdiction to “revise and modify
any order made by it, . . . make such new orders as may be
necessary, and . . . award costs as justice may require[.]” N.H.
Rev. Stat. Ann. § 458:14. 	See Mullen II, Report and
Recommendation (Doc. No. 2) at 4 n.2. 	Accordingly, the district
judge should dismiss the claim against defendant Edward Kissell
for lack of subject matter jurisdiction, without prejudice to
plaintiff’s ability to seek relief in state court.
The complaint also indicates that plaintiff is pursuing an
“inquiry into the Concord School district’s improper use” of
certain federal funding. 	But neither complaint nor any of the
attachments provide any factual support for such a claim. 	The
2This motion is apparently a copy of one filed in
plaintiff’s New Hampshire state court divorce proceedings, with
references to the state court crossed out. 	Nearly all the
attachments to the complaint are styled in the same manner.
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district judge should therefore dismiss this claim for failure
to state a claim for which relief can be granted.
Conclusion
For the foregoing reasons, the district judge should
dismiss the complaint as to defendant Edward J. Kissell for lack
of subject matter jurisdiction, without prejudice to the
plaintiff’s ability to assert her claims in a state court of
competent jurisdiction. 	The remaining claims should be
dismissed for failure to state a claim for which relief can be
granted. 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 29, 2020
cc: 	Martha Mullen, pro se
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