Brooks v. Governor, NH, State of

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Troy E. Brooks
v. 	Case No. 21-cv-610-JL
Governor Christopher T. Sununu
REPORT AND RECOMMENDATION
Plaintiff, Troy E. Brooks, asserts that the defendant, New
Hampshire Governor Christopher Sununu, has violated Mr. Brooks’s
rights under the United States Constitution, federal criminal
law, and the Americans with Disabilities Act (“ADA”). 	See
Compl. (Doc. No. 1); see also Compl. Addendum (Doc. No. 9). 1
Because Mr. Brooks is proceeding pro se and in forma pauperis,
the matter is before the court for preliminary review pursuant
to 28 U.S.C. § 1915(e)(2) and LR 4.3(d)(2). 	Also before the
court for consideration and a recommendation as to disposition
are the following motions Mr. Brooks has filed in this matter:
 	“Motion for Temporary Restraining Order” (Doc. No. 5);
 	“Pretrial Motion/Question of Law” (Doc. No. 7); and
 	“Motion for Interlocutory Transfer Without Ruling to
SCOTUS” (Doc. No. 8).
1 In addition to the assertions in Mr. Brooks’s complaint
documents (Doc. Nos. 1, 9), the court has considered all of the
factual assertions asserted in his pending motions (Doc Nos. 3-
8, 10) in conducting its preliminary review of the complaint.
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Background
Mr. Brooks’s filings, standing alone, do not provide a
clear narrative of the facts underlying his claims. 	Reading the
complaint documents generously, and considering published
judicial opinions and court documents of which the court may
properly take judicial notice, the court finds that Mr. Brooks
has asserted the following facts.
In the early to mid-1990s, Mr. Brooks was engaged in a
custody dispute concerning a child born in 1993. 	See Brooks v.
N.H. Sup. Ct., 80 F.3d 633, 635 (1st Cir. 1996). 	The child’s
mother, Erica Bodwell, was an attorney. 	In response to events
which occurred during the custody proceedings, Mr. Brooks filed
complaints with the New Hampshire Supreme Court (“NHSC”)
Attorney Disciplinary Committee (“ADC”) against several
attorneys, including Attorney Bodwell. 	Mr. Brooks then
attempted to use information from the ADC proceedings in the
custody dispute. 	At that time, under NHSC Rule 37(17)(a), the
information he sought to use from the ADC proceedings was
confidential and protected from such disclosure. 	See N.H. Sup.
Ct. R. 37(17)(a) (1984).
In 1995, Mr. Brooks filed a petition in the NHSC, invoking
that court’s original jurisdiction, challenging the
constitutionality of NHSC Rule 37(17)(a). 	See In re Brooks, No.
SMC-95-001 (N.H.); In re Brooks, 140 N.H. 813, 815, 678 A.2d
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140, 141 (1996). 	For a period of time in 1995, Attorney Anne
Edwards, who was then employed by the Sullivan & Gregg law firm
in Nashua, New Hampshire, represented Mr. Brooks in his action
before the NHSC. 	It seems that representation occurred sometime
after Mr. Brooks filed that matter pro se in January 1995 and
before Attorney Cobbin appeared as counsel for Mr. Brooks in
that case sometime after March 1, 1995. 2 	Attorney Edwards is now
employed at the Office of the New Hampshire Attorney General
(“NHAG”).
Also in 1995, Mr. Brooks filed an action in this court,
Brooks v. N.H. Sup. Ct., No. 95-166-M (D.N.H. filed Mar. 31,
1995), again challenging the constitutionality of NHSC Rule
37(17)(a). 	See Brooks, 80 F.3d at 636. 	Attorneys from the NHAG
represented the NHSC in that case.
2 Mr. Brooks, proceeding pro se, filed his initial petition
in the NHSC in In re Brooks, No. SMC-95-001 (N.H.), on January
11, 1995. 	See Brooks v. N.H. Sup. Ct., No. 95-166-M (D.N.H.)
(Docket No. 1, Ex. 1). 	On March 1, 1995, another party in that
NHSC case served Mr. Brooks by sending a copy of a filing to
Attorney Edwards at Sullivan & Gregg. 	See id. (Docket No. 1,
Ex. 4). 	Then, sometime after March 1, 1995, Attorney Phillip
Cobbin appeared on behalf of Mr. Brooks in the NHSC case, and
also appeared for Mr. Brooks on June 1, 1995 in the case Mr.
Brooks had filed in the District of New Hampshire, see id.
(Docket No. 8).
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Discussion
I. 	Preliminary Review
A. 	Standard
The court conducts a preliminary review of complaints filed
by pro se litigants proceeding in forma pauperis. 	See 28 U.S.C.
§ 1915(e)(2); LR 4.3(d)(2). 	In considering whether a pro se
complaint states a claim, the court construes the pleading
liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). 	The court then determines whether, stripped of legal
conclusions, and with all reasonable inferences construed in
plaintiff’s favor, the complaint contains “sufficient factual
matter, accepted as true, to ‘state a claim to relief.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Claims may be dismissed, sua sponte, if 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); LR 4.3(d)(2).
B. 	Claims Concerning Attorney Edwards
In this action, Mr. Brooks asserts that Governor Sununu,
acting by and through the NHAG, has violated his rights by
preventing him from accessing certain information which was a
matter of attorney-client privilege between Mr. Brooks and
Attorney Edwards in 1995, during the brief period during which
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she appears to have represented him in In re Brooks, No. SMC-95-
001. 	Mr. Brooks further asserts that Attorney Edwards has
“refus[ed] to explain her writings in 350 docket entries.” 	Doc.
No. 1, at 4. 	As evidence of Governor Sununu’s interference with
his rights, Mr. Brooks points to a letter he received from
Jennifer Smith, the Director of Citizen Services in Governor
Sununu’s office, responding to a request for the Governor’s
assistance in contacting Attorney Edwards. 	Ms. Smith’s letter
states that Mr. Brooks’s request pertained to “a private legal
matter, and one that our office and Atty. Edwards are not in a
position to assist you with.” 	Doc. No. 1-1. 	Ms. Smith’s letter
suggests that Mr. Brooks seek private legal counsel to help him.
See id.
Attorney Edwards is not currently representing Mr. Brooks,
and it does not appear that she has represented him in more than
twenty-five years. 	Attorney Edwards’s employment with the NHAG
could prevent her from providing legal assistance or services to
Mr. Brooks at this time. 	Attorney Edwards is under no present
obligation to provide legal services or advice to Mr. Brooks, as
she is not presently his attorney. 	For these reasons, Mr.
Brooks has not identified any right which has been inhibited by
Governor Sununu’s failure to provide assistance to Mr. Brooks
with regard to contacting Attorney Edwards. 	As Mr. Brooks has
alleged no other acts or omissions by the Governor which would
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give rise to any claim for relief in this Court, the District
Judge should dismiss Mr. Brooks’s claims concerning Attorney
Edwards, for failure to state a claim upon which relief might be
granted.
C. 	Claims Concerning Criminal Conduct
Mr. Brooks claims that Governor Sununu and other
individuals have committed the federal crimes of obstruction of
justice, conspiracy, embracery, and misprison of felony.
However, “[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
omitted). 	Because Mr. Brooks cannot state a private cause of
action based on the alleged violation of criminal laws by the
Governor or anyone else, the District Judge should dismiss those
claims.
D. 	ADA Claim
Mr. Brooks asserts that he is a disabled veteran, and he
cites the ADA as providing him with a cause of action in this
case. 	Mr. Brooks has not asserted any facts to demonstrate that
he has been discriminated against because of his disability, or
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that he has otherwise been treated in a manner that violates
that law. 	Accordingly, the District Judge should dismiss Mr.
Brooks’s ADA claims.
II. 	Motions
A. 	Motion for TRO (Doc. No. 5)
Mr. Brooks has asked the court to issue a temporary
restraining order (“TRO”) enjoining the ADC from harassing him,
conspiring against him, or committing any crimes, and preventing
that body from acting on any outstanding attorney disciplinary
complaints filed by Mr. Brooks. 	He also asks this court to
issue an order either providing him with certain information or
directing others to provide information to him.
1. 	Rule 65(b) – TRO
Rule 65(b)(1) states that:
The court may issue a temporary restraining order
without written or oral notice to the adverse party or
its attorney only if:
(A) specific facts in an affidavit or a verified
complaint clearly show that immediate and
irreparable injury, loss, or damage will result
to the movant before the adverse party can be
heard in opposition; and
(B) the movant's attorney [or the movant
proceeding pro se] certifies in writing any
efforts made to give notice and the reasons why
it should not be required.
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Fed. R. Civ. P. 65(b)(1). 	“‘[T]he requirements of Rule 65(b)(1)
are not mere technicalities but establish minimum due process.
Thus, [t]o obtain ex parte relief, a party must strictly comply
with those requirements.” 	Woodard-CM, LLC v. Sunlord Leisure
Prods., Inc., Case No. 20-23104-CIV-WILLIAMS, 2020 U.S. Dist.
LEXIS 173105, at *2, 2020 WL 5547917, at *1 (S.D. Fla. July 29,
2020). 	Mr. Brooks has not demonstrated that he has attempted to
notify the defendant named in this case or verified by affidavit
or otherwise, or that “immediate and irreparable” harm would
accrue to him if he were not heard prior to giving such notice.
Accordingly, the District Judge should deny Mr. Brooks’s motion
for a TRO (Doc. No. 5).
2. 	Rule 65(a) – Preliminary Injunction
To the extent Mr. Brooks’s request for a TRO or injunctive
relief may be construed as a motion for a preliminary injunction
asserted under Rule 65(a), he “‘must establish that he is likely
to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is
in the public interest.’” 	Glossip v. Gross, 576 U.S. 863, 876
(2015) (citation omitted). 	The likelihood of success and
irreparable harm are the factors that weigh most heavily in the
analysis. 	See Esso Std. Oil Co. v. Monroig–Zayas, 445 F.3d 13,
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18 (1st Cir. 2006); see also Voice of the Arab World, Inc. v.
MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011).
Mr. Brooks has failed to state any claim upon which relief
might be granted. 	Accordingly, he has failed to demonstrate
that he is likely to succeed on any claim asserted in this
action.
Further, much of the information Mr. Brooks seeks concerns
information that has existed in the public dockets of various
courts for more than twenty-five years. 	Nothing in Mr. Brooks’s
filings provides any basis for this Court to find that any
irreparable harm will occur if the court fails to issue the
requested injunction. 	For these reasons, to the extent Mr.
Brooks is seeking a preliminary injunction, the District Judge
should deny that motion.
B. 	Pretrial Motion/Question of Law (Doc. No. 7)
Mr. Brooks asks the court to resolve, as a matter of law,
whether one’s rights as a father accrue from the time of his
child’s conception or from the time of that child’s birth. 	That
question is not properly before the court at this time, as it
has no bearing on whether Governor Sununu violated Mr. Brooks’s
rights. 	The District Judge, therefore, should decline to
provide what amounts to an advisory opinion and deny the motion
(Doc. No. 7).
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C. 	Interlocutory Transfer to SCOTUS (Doc. No. 8)
Mr. Brooks has asked this court to transfer this matter to
the United States Supreme Court. 	Under certain circumstances,
“a district court may transfer any civil action to any other
district or division where it might have been brought or to any
district or division to which all parties have consented.” 	28
U.S.C. § 1404(a).
The United States Supreme Court is a court of limited
jurisdiction. 	Only under particular circumstances, not present
here, may a party invoke the Supreme Court’s jurisdiction. 	See,
e.g., 28 U.S.C. §§ 1251, 1253, 1254, 1257(a). 	The Supreme Court
does not have jurisdiction to hear this case at this time. 	This
court cannot transfer this action to the Supreme Court, as the
matter could not have been brought in that court at the time it
was filed here. 	See 28 U.S.C. § 1404(a). 	Accordingly, the
District Judge should deny the motion for transfer (Doc. No. 8).
Conclusion
For the foregoing reasons, the District Judge should:
1. 	deny Mr. Brooks’s motions: for a TRO (Doc. No. 3), for
a ruling on a question of law (Doc. No. 7), and to transfer
this case to the United States Supreme Court (Doc. No. 8);
2. 	dismiss this case in its entirety for failure to state
a claim; and
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3. 	direct the clerk’s office to enter judgment and close
this case.
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
August 30, 2021
cc: 	Troy E. Brooks, pro se
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