Galibois v. Fisher
This text of 2005 DNH 024 (Galibois v. Fisher) is published on Counsel Stack Legal Research, covering District Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Galibois v . Fisher CV-04-044-JD 02/15/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Joseph F. Galibois
v. N o . 04-044-JD Opinio n N o . 2005 DNH 024 John Fisher
O R D E R
Joseph F. Galibois, proceeding pro s e , brings a “Petition
for Redress,” alleging violations of his constitutional rights,
actionable under 42 U.S.C. § 1983, and seeking remedies under 28
U.S.C. § 2201(a) and § 2202. Specifically, Galibois alleges that
Sergeant John Fisher, an officer with the Nashua Police
Department, interfered with his campaign demonstration on
election day against candidate John F. Kerry and thereby violated
his rights to freedom of expression, due process, and equal
protection. Fisher moves to dismiss the action on the ground
that the action is barred by the Rooker-Feldman doctrine.1
“The Rooker-Feldman doctrine provides that the district
courts lack jurisdiction over any action that is effectively or
substantially an appeal from a state court’s judgment.” Badillo-
1 See Rooker v . Fidelity Trust Co., 263 U.S. 413, 416 (1923); District of Columbia Court of Appeals v . Feldman, 460 U.S. 4 6 2 , 476 (1983 Santiago v . Naveira-Merly, 378 F.3d 1 , 6 (1st Cir. 2004). That
is the case when the claims raised in federal court are
inextricably intertwined with claims adjudicated in a state
court, meaning that “the federal claim succeeds only to the
extent that the state court wrongly decided the issues before
it.” Sheehan v . Marr, 207 F.3d 3 5 , 39-40 (1st Cir. 2000); accord
Rosenfeld v . Egy, 346 F.3d 1 1 , 18-19 (1st Cir. 2003). A claim is
adjudicated in state court, for purposes of the doctrine, if the
state’s courts would afford the decision preclusive effect.2
Badillo-Santiago, 378 F.3d at 6.
In New Hampshire, a final judgment by a court of competent
jurisdiction is given preclusive effect as to the same parties in
subsequent litigation involving the same issues or cause of
action. N . Country Envtl. Servs., Inc. v . Town of Bethlehem, 150
2 Although the Rooker-Feldman doctrine is related to the doctrine of claim and issue preclusion, the doctrines have previously operated independently. See Maymo-Melendez v . Alvarez-Ramirez, 364 F.3d 2 7 , 32-33 (1st Cir. 2004). Important policy considerations have long supported the application of each of these doctrines. Traditionally, the Rooker-Feldman doctrine has addressed the limited jurisdiction of the lower federal courts and provided a broader prohibition against re-litigation in the lower federal courts of claims originally decided in state court. See, e.g., Verizon Md. Inc. v . Pub. Serv. Comm’n of Md., 535 U.S. 635, 644 (2002); Maymo-Melendez, 364 F.3d at 3 3 ; Wilson, 264 F.3d at 125. In light of the history of these doctrines, it is noted that recently, in at least one case, the Rooker-Feldman and preclusion doctrines appear to have been conflated into a single analysis. See Badillo-Santiago, 378 F.3d at 6.
2 N.H. 606, 620 (2004); accord Patterson v . Patterson, 306 F.3d
1156, 1158 (1st Cir. 2002). Further, a final judgment bars
“relitigation of any issue that was or might have been raised
with respect to the subject matter of the prior litigation.” N.
Country Envtl. Servs., 150 N.H. at 620. A judgment dismissing a
cause of action for failure to state a claim is entitled to
preclusive effect after the plaintiff has had an opportunity to
amend the complaint and either fails to do so or any amendment
submitted fails to cure the deficiency. Warren v . Town of E .
Kingston, 145 N.H. 249, 253 (2000). A judgment is final when no
appeal is pending. In re Donovan, 137 N.H. 7 8 , 81 (1993).
Galibois filed a “Petition for Redress” in Hillsborough
County Superior Court, Southern Division, on November 4 , 2004.
In the petition, Galibois alleged that he was campaigning for
George W . Bush by wearing a “terrorist costume” and carrying a
sign for John Kerry. He alleged that he was dressed all in black including a ski mask, and carrying two empty ammunition
bandoliers and “a plastic squirt gun that resembles an AK 47-
style rifle.” His behavior “included waving [his] hand,
gesturing politely, dancing and demonstrating enthusiasm for
[his] “‘candidate’” in a safe, controlled way in a public area.”
Galibois acknowledged in his petition that “[g]iven the
racy, attractive and unique nature of my costume, I suspected
3 that local police might question me . . . .” He alleged that
the first police officer was polite and conciliatory but
explained that they had received several complaints “about a
terrorist on the streets with a rifle.” He alleged that the
second officer, Sergeant Fisher, told him that if he continued
his actions he would be subject to prosecution and that he had to take off the mask, bandoliers, and rifle. When Galibois argued,
Fisher responded that he was “not playing that game” and told him
he had four minutes to comply. Galibois claimed that Fisher
infringed his “Constitutionally protected right to freedom of
expression by unlawfully intimidating [him] with a threat of
prosecution . . . .”
The state court issued an order on November 5 , 2004,
dismissing the petition because it failed to state a cause of
action. Galibois did not seek leave to amend the complaint nor appeal that decision, which under state law he had an established
right to d o . In his affidavit attached to his objection to the
motion to dismiss, Galibois states that he discovered a flaw in
his complaint filed in state court but decided to abandon his
state claims and concluded that appeal would be worthless.
Instead, on November 2 4 , 2004, Galibois filed a “Petition
for Redress” in this court, alleging that on November 2 , 2004, he
was demonstrating against John Kerry by wearing a “‘terrorist
4 costume’” and carrying a sign for Kerry. Galibois describes his
encounter with Fisher, including Fisher’s statement that if
Galibois did not stop campaigning as he had been doing, he would
be subject to prosecution. In the federal petition, Galibois
alleges that the incident violated his constitutionally protected
rights to freedom of expression, due process, and equal protection. He seeks a declaration that Fisher’s actions
violated his constitutional rights and seeks the same money
damages demanded in the petition filed in state court (“$208,
payable as $1 per week by Defendant’s personal check (none in
advance) due every Tuesday until the next Presidential
Election”).
A comparison of the two petitions shows that the claims
Galibois alleges here arise from the same incident and involve
the same factual scenario as the claim he alleged in the state court petition. See Patterson, 306 F.3d at 1158-59. Because the
state petition was dismissed for failure to state a cause of
action, Galibois could proceed on his claims alleged here only if
the state court wrongly decided that he failed to state a cause
of action.
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2005 DNH 024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/galibois-v-fisher-nhd-2005.