Huston v. Martins

• Court: District Court, D. New Hampshire
• Decided: September 27, 1995
• Docket: CV-92-30-SD
• Status: Published

Opinion

Huston v . Martins CV-92-30-SD 09/27/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Roland E . Huston, J r .

v. Civil N o . 92-30-SD

Germano M . Martins; Joseph C . Krolikowski

O R D E R

Pro se plaintiff Roland E . Huston, Jr., brought this civil rights action under 42 U.S.C. § 1983 against defendants Germano M . Martins and Joseph C . Krolikowski for alleged due process violations in connection with defendants' purported attempts to enforce certain child-support orders.*

Background

In a Report and Recommendation (R&R) dated May 2 6 , 1992,

then-Magistrate Judge Barry recommended the dismissal of

plaintiff's complaint prior to service upon defendants for

reasons o f , among others, comity and federalism. Plaintiff filed

* Defendant Martins was at the time of the complaint a support enforcement officer with the Nashua, New Hampshire, District Office of the New Hampshire Department of Health and Human Services. Defendant Krolikowski is allegedly plaintiff's ex-wife's legal counsel. a timely objection to the R&R.

By order dated July 1 4 , 1992, this court, after performing

the de novo review necessitated by 28 U.S.C. § 636(b)(1)(C),

issued the following ruling: On condition that: (1) by August 1 3 , 1992, the plaintiff file (with proof of service on opposing counsel) a pleading entitled "Status of Proceedings in State Courts" detailing the nature of all pending state court proceedings and the anticipated date of their hearings, and (2) furnish the court (with proof of service on opposing counsel) with a status report on said state court proceedings every sixty (60) days thereafter, (3) the court will abstain from further proceedings in this action pending completion of the proceedings in state court.

Order of July 1 4 , 1992, at 2 .

During the course of plaintiff's state court proceedings,

the state abandoned the system of contacting alleged delinquent

child support obligors implicated by the complaint herein. As such, the New Hampshire Supreme Court dismissed as moot

plaintiff's appeal regarding the old system, but allowed

plaintiff to initiate a proceeding challenging the "new" system.

See Huston v . Martins, Civ. N o . 92-654, slip o p . at 1 (N.H.

June 1 6 , 1993). Plaintiff did s o , but that court ultimately

declined to hear his appeal. See Plaintiff's Report of 8-13-94

on Status of Proceedings in the State Courts at 1 . With the

denial of said appeal, it appears from the record that

2 plaintiff's state court proceedings are either exhausted or

terminated. Accordingly, the court herewith resumes its inquiry

into the May 2 6 , 1992, R&R.

Discussion

"The power of the district court to reconsider a matter so decided by the magistrate judge is limited to those circumstances

'where it has been shown that the magistrate's order is clearly

erroneous or contrary to law.'" Rubin v . Smith, 882 F. Supp.

212, 215 (D.N.H. 1995) (quoting 28 U.S.C. § 636(b)(1)(A)) (other citations omitted). "'A finding is "clearly erroneous" when although there is evidence to support i t , the reviewing court on the entire evidence is left with the definite and firm conviction

that a mistake has been committed.'" Id. (quoting United States

v . United States Gypsum Co., 333 U.S. 3 6 4 , 395 (1948)).

Plaintiff alleges that defendants' conduct violated his due

process rights. "Due process, which may be said to mean fair procedure, is not a fixed or rigid concept, but, rather, is a flexible standard which varies depending upon the nature of the interest affected, and the circumstances of the deprivation." Gorman v . University of R.I., 837 F.2d 7 , 12 (1st Cir. 1988). See also Morrissey v . Brewer, 408 U.S. [471], 481 [(1971)] ("due process is flexible and calls for such procedural protections as the particular situation demands").

3 Silva v . University of N.H., 888 F. Supp. 293, 318 (D.N.H. 1994). Moreover,

Due process requires that "a deprivation of life, liberty, or property 'be preceded by notice and opportunity for hearing appropriate to the nature of the case.'" [Cleveland Bd. of Educ. v.] Loudermill, 470 U.S. [532,] 542 [(1985)] (quoting Mullane v . Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)); Armstrong v . Manzo, 380 U.S. 545, 552 (1965) (due process requires that a plaintiff receive adequate notice and an opportunity to be heard "at a meaningful time and in a meaningful manner"). "The hearing, to be fair in the due process sense, implies that the person adversely affected was afforded the opportunity to respond, explain, and defend. Whether the hearing was fair depends upon the nature of the interest affected and all of the circumstances of the particular case." Gorman, supra, 837 F.2d at 13.

Id.

The magistrate judge found no due process violation as a

result of defendants' actions because "the complainant received

notice of the [child support order] violations and was afforded an opportunity to be heard." R&R at 3 n.*. The court, having

considered the R&R, plaintiff's objection, and defendant Martin's

response thereto, finds and rules that the magistrate judge's

order was neither "clearly erroneous" nor "contrary to law".

Accordingly, the court herewith approves the May 2 6 , 1992, R&R

dismissing plaintiff's complaint in its entirety.

4 Conclusion

For the reasons set forth herein, and upon due consideration

of the objection filed, the court herewith approves the Report &

Recommendation of Magistrate Judge William H . Barry, Jr., dated

May 2 6 , 1992. Plaintiff's Complaint is herewith dismissed in its

entirety. SO ORDERED.

Shane Devine, Senior Judge United States District Court

September 2 6 , 1995 cc: Roland E . Huston, Jr., pro se William C . McCallum, Esq. Gary Casinghino, Esq.