Colassi v. Looper et al CV-98-115-JL 05/20/08 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Kenneth William Colassi
v. Civil No. 08-cv-115-JL Opinion No. 2 008 DNH 106 Oksana Looper, Daniel Looper, and Hillsborough County Superior Court, Southern Division
O R D E R
Plaintiff Kenneth William Colassi, proceeding pro se and
seeking leave to proceed in forma pauperis, has sued his former
wife, Oksana Looper; her present husband, Daniel Looper; and the
Southern Division of Hillsborough County Superior Court.
Colassi alleges violations of his federal constitutional right to
due process and other wrongs arising principally out of the
Superior Court's preliminary refusal to modify its parenting
order to prevent the hoopers from moving from New Hampshire to
Oklahoma with leva Colassi, the minor daughter of Colassi and
Oksana Looper. Colassi has moved for emergency injunctive relief
against leva's relocation.
I. Procedural Background
While this case was awaiting preliminary review by the
magistrate by virtue of Colassi's request to proceed in forma pauperis, see L.R. 4.3(d)(1)(A), the Superior Court filed a
motion to dismiss on a number of grounds.1 The Superior Court
argues, among other things, that the Rooker-Feldman doctrine, see
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D .C . C t . of
Appeals v. Feldman, 460 U.S. 462 (1983), and the domestic
relations exception, see Ankenbrandt v. Richards, 504 U.S. 689
(1992), deprive this court of subject-matter jurisdiction, and
that the Superior Court enjoys absolute judicial immunity from
Colassi's claim for damages.
The Superior Court, acting on Colassi's motion, conducted a
hearing on "only the limited issue as to whether any irreparable
harm would come to the minor child if modifications were not made
immediately" to its existing parenting order giving Oksana Looper
primary residential responsibility over leva. In re Colassi, No.
06-M-200, slip op. at 1 (N.H. Sup. C t . Mar. 13, 2008). Both
Colassi and Oksana Looper appeared at the hearing with counsel.
^he New Hampshire Supreme Court and the New Hampshire Department of Health and Human Services also purport to join in the motion to dismiss, pointing out that they are named in the caption of the complaint but not referenced as defendants anywhere in its body. In the complaint on file with the court, however, the names of those defendants in the caption of the complaint have been stricken through with black ink. They also have not been served, and Colassi does not identify them as defendants in his objection to the motion to dismiss. The court therefore does not consider the state Supreme Court or DHHS to have been named as defendants to this action.
2 Id. The Superior Court made preliminary findings that the move
was for a legitimate purpose and that it would not cause
irreparable harm to leva, see N.H. Rev. Stat. Ann. § 461-A:12
(2007) (governing relocation of a child subject to a parenting
order), "[a]t least until a temporary hearing can be conducted
with the input of a Guardian ad litem." Slip op. at 2. The
Superior Court thus permitted Oksana Looper to retain primary
residential responsibility over leva in moving to Oklahoma
(except during her summer vacation from school, when that right
would belong to Colassi upon leva's return to New Hampshire), but
appointed a guardian ad litem to provide a preliminary opinion on
leva's best interests by July 1, 2008, and scheduled the case for
a final pre-trial conference thereafter. Id. at 2-3.
Approximately two weeks later, Colassi commenced this action
pursuant to this court's federal question jurisdiction, 28 U.S.C.
§ 1331, alleging that the Superior Court had violated his federal
constitutional rights by authorizing leva's relocation to
Oklahoma. The complaint also references other wrongs by the
state judicial system and Oksana Looper during her divorce
proceedings against Colassi, including the formulation and
execution of the original parenting order, as well as by the
hoopers in allegedly interfering with his visitation with leava
and subjecting her to abuse. Among other relief, Colassi seeks
3 to have this court overturn a number of the orders entered by the
Superior Court during those proceedings, including its most
recent order declining to modify the parenting arrangement, as
well as the divorce decree itself.
II. Analysis
This court lacks subject-matter jurisdiction over these
claims, though not entirely for the reasons identified by the
Superior Court in its motion to dismiss.2 Because a federal
court has a duty to inquire into its subject-matter jurisdiction
independent of any arguments presented by the parties, see, e.g.,
Fafel v. DiPaola, 399 F.3d 403, 410 (1st Cir. 2005), the court
relies on an additional jurisdictional defect, beyond those
identified by the Superior Court, in dismissing this action.
Under the doctrine announced in Younger v. Harris, 401 U.S.
37 (1971), federal courts generally abstain from intervening in
state judicial processes, including child custody proceedings.
Moore v. Sims, 442 U.S. 415, 422-23 (1979); Malachowski v. City
2While, at first blush, the domestic relations exception might seem to apply, the majority view is that the exception divests federal courts of jurisdiction over cases premised on diversity of citizenship only, in line with the reasoning of Ankenbrandt. See Mandel v. Town of Orleans, 326 F.3d 267, 271 & n.3 (1st Cir. 2003) (citing cases but declining to resolve the issue). This a federal question case.
4 of Keene, 787 F.2d 704, 708-09 (1st Cir. 1986). "Abstention is
appropriate when the requested relief would interfere (1) with an
ongoing state judicial proceeding; (2) that implicates an
important state interest; and (3) that provides an adequate
opportunity for the federal plaintiff to advance his federal
constitutional challenge." Rossi v. Gemma, 489 F.3d 26, 34-35
(1st Cir. 2007 ) .
The Superior Court custody proceedings in which Colassi asks
this court to intervene readily satisfy these criteria. Those
proceedings (1) are ongoing, as evidenced by the fact that the
order authorizing leva's relocation was only preliminary and
called for the appointment of a guardian ad litem to assist the
Superior Court in further deciding the issue,3 (2) implicate
important state interests, see Moore, 442 U.S. at 435;
Malachowksi, 787 F.2d at 708, and (3) provide Colassi the chance
to raise any federal constitutional objections to the Superior
Court's actions, see Malachowski, 787 F.2d at 708.
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Colassi v. Looper et al CV-98-115-JL 05/20/08 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Kenneth William Colassi
v. Civil No. 08-cv-115-JL Opinion No. 2 008 DNH 106 Oksana Looper, Daniel Looper, and Hillsborough County Superior Court, Southern Division
O R D E R
Plaintiff Kenneth William Colassi, proceeding pro se and
seeking leave to proceed in forma pauperis, has sued his former
wife, Oksana Looper; her present husband, Daniel Looper; and the
Southern Division of Hillsborough County Superior Court.
Colassi alleges violations of his federal constitutional right to
due process and other wrongs arising principally out of the
Superior Court's preliminary refusal to modify its parenting
order to prevent the hoopers from moving from New Hampshire to
Oklahoma with leva Colassi, the minor daughter of Colassi and
Oksana Looper. Colassi has moved for emergency injunctive relief
against leva's relocation.
I. Procedural Background
While this case was awaiting preliminary review by the
magistrate by virtue of Colassi's request to proceed in forma pauperis, see L.R. 4.3(d)(1)(A), the Superior Court filed a
motion to dismiss on a number of grounds.1 The Superior Court
argues, among other things, that the Rooker-Feldman doctrine, see
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D .C . C t . of
Appeals v. Feldman, 460 U.S. 462 (1983), and the domestic
relations exception, see Ankenbrandt v. Richards, 504 U.S. 689
(1992), deprive this court of subject-matter jurisdiction, and
that the Superior Court enjoys absolute judicial immunity from
Colassi's claim for damages.
The Superior Court, acting on Colassi's motion, conducted a
hearing on "only the limited issue as to whether any irreparable
harm would come to the minor child if modifications were not made
immediately" to its existing parenting order giving Oksana Looper
primary residential responsibility over leva. In re Colassi, No.
06-M-200, slip op. at 1 (N.H. Sup. C t . Mar. 13, 2008). Both
Colassi and Oksana Looper appeared at the hearing with counsel.
^he New Hampshire Supreme Court and the New Hampshire Department of Health and Human Services also purport to join in the motion to dismiss, pointing out that they are named in the caption of the complaint but not referenced as defendants anywhere in its body. In the complaint on file with the court, however, the names of those defendants in the caption of the complaint have been stricken through with black ink. They also have not been served, and Colassi does not identify them as defendants in his objection to the motion to dismiss. The court therefore does not consider the state Supreme Court or DHHS to have been named as defendants to this action.
2 Id. The Superior Court made preliminary findings that the move
was for a legitimate purpose and that it would not cause
irreparable harm to leva, see N.H. Rev. Stat. Ann. § 461-A:12
(2007) (governing relocation of a child subject to a parenting
order), "[a]t least until a temporary hearing can be conducted
with the input of a Guardian ad litem." Slip op. at 2. The
Superior Court thus permitted Oksana Looper to retain primary
residential responsibility over leva in moving to Oklahoma
(except during her summer vacation from school, when that right
would belong to Colassi upon leva's return to New Hampshire), but
appointed a guardian ad litem to provide a preliminary opinion on
leva's best interests by July 1, 2008, and scheduled the case for
a final pre-trial conference thereafter. Id. at 2-3.
Approximately two weeks later, Colassi commenced this action
pursuant to this court's federal question jurisdiction, 28 U.S.C.
§ 1331, alleging that the Superior Court had violated his federal
constitutional rights by authorizing leva's relocation to
Oklahoma. The complaint also references other wrongs by the
state judicial system and Oksana Looper during her divorce
proceedings against Colassi, including the formulation and
execution of the original parenting order, as well as by the
hoopers in allegedly interfering with his visitation with leava
and subjecting her to abuse. Among other relief, Colassi seeks
3 to have this court overturn a number of the orders entered by the
Superior Court during those proceedings, including its most
recent order declining to modify the parenting arrangement, as
well as the divorce decree itself.
II. Analysis
This court lacks subject-matter jurisdiction over these
claims, though not entirely for the reasons identified by the
Superior Court in its motion to dismiss.2 Because a federal
court has a duty to inquire into its subject-matter jurisdiction
independent of any arguments presented by the parties, see, e.g.,
Fafel v. DiPaola, 399 F.3d 403, 410 (1st Cir. 2005), the court
relies on an additional jurisdictional defect, beyond those
identified by the Superior Court, in dismissing this action.
Under the doctrine announced in Younger v. Harris, 401 U.S.
37 (1971), federal courts generally abstain from intervening in
state judicial processes, including child custody proceedings.
Moore v. Sims, 442 U.S. 415, 422-23 (1979); Malachowski v. City
2While, at first blush, the domestic relations exception might seem to apply, the majority view is that the exception divests federal courts of jurisdiction over cases premised on diversity of citizenship only, in line with the reasoning of Ankenbrandt. See Mandel v. Town of Orleans, 326 F.3d 267, 271 & n.3 (1st Cir. 2003) (citing cases but declining to resolve the issue). This a federal question case.
4 of Keene, 787 F.2d 704, 708-09 (1st Cir. 1986). "Abstention is
appropriate when the requested relief would interfere (1) with an
ongoing state judicial proceeding; (2) that implicates an
important state interest; and (3) that provides an adequate
opportunity for the federal plaintiff to advance his federal
constitutional challenge." Rossi v. Gemma, 489 F.3d 26, 34-35
(1st Cir. 2007 ) .
The Superior Court custody proceedings in which Colassi asks
this court to intervene readily satisfy these criteria. Those
proceedings (1) are ongoing, as evidenced by the fact that the
order authorizing leva's relocation was only preliminary and
called for the appointment of a guardian ad litem to assist the
Superior Court in further deciding the issue,3 (2) implicate
important state interests, see Moore, 442 U.S. at 435;
Malachowksi, 787 F.2d at 708, and (3) provide Colassi the chance
to raise any federal constitutional objections to the Superior
Court's actions, see Malachowski, 787 F.2d at 708.
There is also no question that much of the relief Colassi
seeks from this court, e.g., overturning or modifying the
Superior Court's orders, or enjoining leva's relocation despite
3Indeed, as demonstrated by the procedural posture of the Superior Court's decision. New Hampshire law allows a parent to move for modification of a parenting order. N.H. Rev. Stat. Ann. § 4 61-A:11 (2007 & 2008 supp.).
5 its approval by that court, would "interfere" with the
proceedings there. See Rio Grande Cmtv. Health Ctr., Inc. v.
Rullan, 397 F.3d 56, 70 (1st Cir. 2005) (holding that, for
Younger abstention, "interference" includes a federal "proceeding
that either enjoins the state proceeding or has the 'practical
effect' of doing so"). Finally, there is "nothing to suggest
that this case falls within any of the exceptions [to federal
abstention] recognized by Younger, exceptions which have been
narrowly construed." Malachowski, 787 F.2d at 709 (ruling that
New Hampshire child custody procedures are not "flagrantly
unconstitutional," and parents' temporary loss of custody was not
"the sort of serious, imminent, and irreparable harm" to justify
federal intervention). Indeed, this court previously made all
the same rulings in deciding to abstain from another action
Colassi filed to challenge other aspects of the state-court
custody proceedings. Colassi v. Hillsborough County Super. C t .,
No. 05-cv-187-SM, slip op. at 4-7 (D.N.H. July 15, 2005), rept. &
rec. adopted, slip op. (D.N.H. July 28, 2005).
While Colassi requests other relief that does not warrant
dismissal of those claims as an exercise of Younger abstention,
there are other barriers to them that require their dismissal
nonetheless. Colassi seeks damages from the Superior Court on
account of its rulings--a remedy which would also "interfere"
6 with the state proceedings within the contemplation of Younger,
but is not subject to dismissal as such because it is legal,
rather than equitable, in nature. See Rossi, 489 F.3d at 37-38
(citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 731
(1996)). But damages against a court or its judges for the
decisions they make are barred by absolute judicial immunity.
See Mireles v. Waco, 502 U.S. 9, 11 (1991). The court therefore
grants the Superior Court's motion to dismiss the damages claim.
Colassi further asks this court to "annul" his divorce from
Oskana Looper. That claim is barred by the Rooker-Feldman
doctrine, under which the federal district courts lack
jurisdiction over "cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting
district court review and rejection of those judgments." Exxon
Mobil Corp. v. Saudi Basic Indus., 544 U.S. 280, 284 (2005). A
number of courts have held that the doctrine, as refined by
Exxon-Mobil, bars federal court review of final state divorce
decrees. See, e.g., Jackson v. Davidson, Nos. 07-1389 et al.,
2008 WL 925526, at *1 (10th Cir. Apr. 7, 2008) (unpublished
disposition); Davis v. United States, 499 F.3d 590, 595 (6th Cir.
2007); Kwasnik v. Leblon, 228 Fed. Appx. 238, 242 (3d Cir.)
(unpublished disposition), cert, denied, 128 S. C t . 451 (2007).
7 The Superior Court's motion to dismiss on the basis of Rooker-
Feldman is granted insofar as it seeks dismissal of Colassi's
challenge to the divorce decree.4
Colassi also alleges fraud, extortion, abuse to leva, and
other similar wrongs against the hoopers. Under the appropriate
liberal reading of the pro se complaint, see Estelle v. Gamble,
429 U.S. 97, 106 (1976), the court cannot discern any cause of
action against the hoopers under federal law, and Colassi
specifically invokes supplemental jurisdiction, 28 U.S.C. § 1367,
as to his claims against them. Because the court is dismissing
all of Colassi's federal claims, however, it declines to exercise
supplemental jurisdiction over any state-law claims. See 28
U.S.C. § 1367(c)(3); Marrero-Gutierrez v. Molina, 491 F.3d 1, 7
(1st Cir. 2007). The court notes in that regard that it lacks
diversity jurisdiction over those claims: while the hoopers now
reside in Oklahoma, they were still living in New Hampshire when
this action was filed, which is the relevant time period for
4The Superior Court's motion to dismiss erroneously invokes Rooker-Feldman as divesting this court of jurisdiction over all of Colassi's claims, including his challenge to the parenting orders. As the Superior Court appears to acknowledge, however, state proceedings must have "ended" for the Rooker-Feldman doctrine to apply. Federacion de Maestros de P.R. v. Junta de Relaciones del Trabaio de P.R., 410 F.3d 17, 27 (1st Cir. 2005) . As just discussed, that cannot be said of the ongoing child custody proceedings at issue here, and the Superior Court does not argue to the contrary. determining domicile. See, e.g., Valentin v. Hosp. Bella Vista,
254 F .3d 358, 361 (1st Cir. 2001).
Ill. Conclusion
For the foregoing reasons, the court GRANTS the Superior
Court's motion to dismiss (document no. 8) insofar as it asserts
lack of subject-matter jurisdiction as to Colassi's claim
challenging the divorce decree and judicial immunity from his
claim for damages. The court decides to abstain from hearing the
balance of Colassi's claims against the Superior Court under
Younger v. Harris. The court declines to exercise supplemental
jurisdiction over Colassi's claims against the hoopers. All
claims except that seeking damages from the Superior Court are
dismissed without prejudice. Colassi's motion for emergency
injunctive relief (document no. 2) is TERMINATED. The clerk
shall enter judgment accordingly and close the case.
SO ORDERED.
Dated: May 20, 2008
cc: Kenneth William Colassi, pro se Nancy J. Smith, Esq. Oksana Looper, pro se Daniel Looper, pro se