UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Warren E. Peterson

v. Civil No. 06-cv-424-SM

Eileen Fox, Clerk, New Hampshire

Supreme Court & Wilda R. Elliott,

Clerk, Brentwood Family Court

REPORT AND RECOMMENDATION

Before the Court is Warren Peterson’s complaint, filed

pursuant to 42 U.S.C. § 1983, alleging that the New Hampshire

Supreme Court (“NHSC”) and the Brentwood Family Court (“BFC”),

through its court clerks, have violated his fundamental

constitutional rights. Peterson has filed a complaint (document

no. 1) that is before me for preliminary review to determine

whether the complaint invokes the subject matter jurisdiction of

this Court, states any claim upon which relief might be granted,

or names defendants that are immune from liability for the acts

alleged. See United States District Court for the District of

New Hampshire Local Rule (“LR”) 4.3(d)(2)(A). Peterson has also

filed a motion for preliminary relief (document no. 5) that has

been referred to me by the Chief Judge for a Report and

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Recommendation (document no. 6). Peterson seeks an order from

this Court directing the NHSC to provide Peterson with a free

transcript for use in his appeal from the BFC because Peterson is

indigent and unable to pay for the preparation of the transcript

required to pursue his appeal. This request, if granted, would

also enjoin the NHSC from dismissing Peterson’s appeal of the

BFC’s denial of visitation with his child. Peterson claims that

the dismissal of his appeal based on his inability to afford a

transcript would violate his constitutional right to familial

association without due process of law. 

As explained fully herein, I recommend that the complaint be

dismissed as it fails to state any claim upon which relief might

be granted. Accordingly, I recommend that the motion for

preliminary injunction be denied as moot.

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

magistrate judge is directed to conduct a preliminary review and

to prepare a report and recommendation determining whether the

complaint or any portion thereof should be dismissed because:

(i) the allegation of poverty is untrue, the 

action is frivolous, malicious, or fails to state 

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a claim upon which relief may be granted, or seeks 

monetary relief from a defendant who is immune 

from such relief under 28 U.S.C. § 1915A(b); or

(ii) it fails to establish subject matter 

jurisdiction under Fed. R. Civ. P. 12(b)(1).

LR 4.3(d)(2)(A). In conducting the preliminary review, the Court

construes pro se pleadings liberally. See Ayala Serrano v.

Lebron Gonzales, 909 F.2d 8, 15 (1st Cir. 1990) (following

Estelle v. Gamble, 429 U.S. 97, 106 (1976) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” Ahmed

v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert. denied,

Ahmed v. Greenwood, 522 U.S. 1148 (1998).

At this preliminary stage of review, all factual assertions

made by the plaintiff and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996) (stating the “failure to state a claim” standard

of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). This

review ensures that pro se pleadings are given fair and 

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meaningful consideration. See Eveland v. Dir. of C.I.A., 843

F.2d 46, 49 (1st Cir. 1988).

Background

Warren Peterson, an inmate at the New Hampshire State

Prison, separated from his wife in July of 1998. While divorce

proceedings were underway, Peterson shared custody of the

couple’s two and a half year old son. In November of 1998,

Peterson was hospitalized for major depression. Peterson’s wife

suspended the shared custody and withheld visitation with the

child from Peterson. In February and March of 1999, Peterson was

again hospitalized for depression. After he was released from

the hospital, in March of 1999, Peterson kidnaped his wife at

gunpoint as a result of his distress at not receiving visitation

with his son. This incident led to Peterson’s arrest and

incarceration.

During his incarceration, Peterson has continued to pursue

visitation with his son in the BFC. Since 1999, that Court has

denied Peterson visitation. Peterson alleges that he has pursued

every legal means within the state system to obtain visitation,

but has been denied every time. 

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Peterson has appealed the BFC’s most recent denial of his

request for visitation to the NHSC. The NHSC accepted the appeal

and has ordered Peterson to have transcripts of the state court

proceedings prepared at his own expense. The NHSC has denied

Peterson’s motions seeking to waive the cost of preparing the

transcripts due to his indigence. The NHSC did extend the time

during which Peterson could pay for the transcripts until January

2, 2007. On that date, the NHSC has ordered, Peterson’s appeal

will be dismissed if Peterson has not paid for the transcripts. 

If the matter is dismissed, Peterson will not be able to renew

his request for visitation in the BFC for another three years.

Peterson now appeals to this Court to direct the NHSC to

provide Peterson with transcripts for free in order to be able to

pursue his appeal and protect his fundamental constitutional

right to family association. Peterson alleges that his rights

have been denied due to his indigence, which is an

unconstitutional basis for denying him the right to due process

or familial association. 

Discussion

Peterson’s challenge to the state court proceedings at issue

in this case raises a question of subject matter jurisdiction

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that this court is obligated to consider and resolve sua sponte. 

See In re Healthco Int’l, Inc., 136 F.3d 45, 50 n.4 (1st Cir.

1998). For the reasons articulated below, this Court is

precluded from exercising jurisdiction over this action under the

abstention doctrine articulated in Younger v. Harris, 401 U.S.

37, 43-44 (1971). Additionally, this Court may be precluded from

exercising jurisdiction over the claims in this action under the

Rooker-Feldman doctrine, see D.C. Ct. App. v. Feldman, 460 U.S.

462, 476 (1983) and Rooker v. Fidelity Trust Co., 263 U.S. 413,

416 (1923).

1. Younger v. Harris

The abstention principles articulated in Younger and its

progeny provide that federal courts should abstain from

entertaining cases involving issues that are the subject of

currently pending state judicial proceedings when: (1) vital

state interests are involved; and (2) the plaintiff will have an

adequate opportunity in the state proceeding to raise the claims

advanced in his federal law suit. Younger, 401 U.S. at 43-44;

Brooks v. N.H. Sup. Ct., 80 F.3d 633, 638 (1st Cir. 1996) (citing

Middlesex County Ethics Comm. V. Garden State Bar Ass’n, 457 U.S.

423, 432 (1982)). “Except in the most extraordinary cases, a

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federal court must presume that state courts, consistent with the

imperatives of the Supremacy Clause, see U.S. Const. art. VI, are

fully competent to adjudicate federal constitutional and

statutory claims properly presented by the parties.” Casa Marie,

Inc. v. Super. Ct. of P.R., 988 F.2d 252, 262 (1st Cir. 1993).

Younger abstention is appropriate, however, only if the

state proceeding affords an adequate opportunity to raise

constitutional challenges. See Middlesex County, 457 U.S. at

432. Federal court intervention can be countenanced only where a

plaintiff can show there is no opportunity to raise the federal

issues in a state court, a state statute under attack is

“flagrantly and patently violative of express constitutional

prohibitions in every clause,” or plaintiffs can show “bad faith, 

harassment, or any other unusual circumstances that would call

for equitable relief.” Younger 401 U.S. at 53-54. 

In this case, there is no allegation that Peterson has been

denied an adequate opportunity in the state court to adjudicate

all of the issues raised in this action. To the contrary,

Peterson has described a number of opportunities to raise his

arguments before the state court. While Peterson alleges that he

will be denied the opportunity for an appeal if he is deprived of

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a transcript, he has had, and availed himself of, the opportunity

to present all of the constitutional arguments for why he should

be provided with a free transcript, to the state courts. The

state courts did not deny him the opportunity to present his

arguments, they simply denied him the relief he seeks. Peterson

does not allege that his due process rights were violated in the

state court proceedings in such a way that prevented him from

raising the federal issues in the state courts, or that he was

barred in any way from presenting his arguments to the state

court.

Further, Peterson’s requested relief, if granted, would put

this Court in the position of imposing itself in an area

involving the vital state interest of domestic relations of its

citizens, including divorce and child custody arrangements. A

ruling favorable to the plaintiff in this case would be

tantamount to reversing the decision of the state court, and

under Younger, such a ruling should not be entered by this Court

because it would improperly interfere with state court

proceedings. In addition, despite his assertions that the state

court is incorrectly denying him a free transcript and that, as a

result, denying him the right to visitation with his child,

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Peterson has not alleged any facts exhibiting “bad faith,

harassment, or any other unusual circumstances that would call

for equitable relief,” and therefore has not alleged facts which

would foreclose the application of the Younger abstention

doctrine to this matter.

2. Rooker-Feldman

While the reasoning of Younger applies in this case because

the matter before the state court is technically still pending,

Peterson has made it clear that as of January 2, 2007, when the

transcript is not paid for, his appeal will be dismissed. At

that point, the judgment of the state court will become final. 

Accordingly, in order to avoid Peterson wasting his time and

resources filing an action here that will almost certainly be

dismissed, I will address at this time why it would be

inappropriate for Peterson to refile this action in this Court

after January 2, 2007.

The Rooker-Feldman doctrine precludes a federal district

court from reviewing a final judgment of a state court. See

Rooker, 263 U.S. at 416. The Rooker-Feldman doctrine applies

only in limited circumstances, to cases where “the losing party

in state court filed suit in federal court after the state

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proceedings ended, complaining of an injury caused by the statecourt judgment and seeking review and rejection of that

judgment.” Galibois v. Fisher, 174 Fed.Appx. 579, 580 (1st Cir.

2006) (citing Lance v. Dennis, ___ U.S. ___, 126 S.Ct. 1198, 1202

(2006) and Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544

U.S. 280, 291 (2005)). Rooker-Feldman forecloses federal court

jurisdiction over claims that are inextricably intertwined with

the claims adjudicated in a state court proceeding. See Sheehan

v. Marr, 207 F.3d 35, 39-40 & n.4 (1st Cir. 2000); Wang v. N.H.

Bd. of Registration in Med., 55 F.3d 698, 703 (1st Cir. 1995). 

“A federal claim is inextricably intertwined with the state court

claims ‘if the federal claim succeeds only to the extent that the

state court wrongly decided the issues before it.’” Sheehan, 207

F.3d at 40 (quoting Hill v. Town of Conway, 193 F.3d 33, 39 (1st

Cir. 1999)).

Once a state court issues a final judgment, a federal

district court lacks jurisdiction to review the decision even if

the state court judgment is patently wrong or was entered

following patently unconstitutional proceedings. See Feldman,

460 U.S. at 486. Thus, a litigant may not seek to reverse a

final state court judgment simply by recasting his complaint in

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1If Peterson decides to appeal this case to the United

States Supreme Court, he would be well-advised to heed United

States Supreme Court Rule 13, which requires that “a petition for

a writ of certiorari to review a judgment in any case, civil or

criminal, entered by a state court of last resort . . . is timely

when it is filed with the Clerk of this Court within 90 days

after entry of the judgment. . ..” Sup. Ct. R. 13. Other

Supreme Court rules further clarify the requirements for filing a

petition for a writ of certiorari. See Sup. Ct. R. 10-16.

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the form of a civil rights action. See Fortune v. Mulherrin, 533

F.2d 21, 22 (1st Cir.), cert. denied, 429 U.S. 864 (1976); see

also Ritter v. Ross, 992 F.2d 750, 754 (7th Cir. 1993), cert.

denied, 510 U.S. 1046 (1994). 

The proper recourse for a litigant in the state courts who

is unhappy with the decisions of those courts is to pursue his or

her appeal through the state appellate process, as Peterson is

doing, and then to the United States Supreme Court.1 In other

words, a party is barred from seeking appellate review of a state

court decision in the federal district court. See Johnson v. De

Grandy, 512 U.S. 997, 1005-06 (1994); see also Wang, 55 F.3d at

703.

In this action, Peterson seeks injunctive relief to stay or

reverse the NHSC’s decision regarding the transcript and

dismissal of Peterson’s appeal. Given that Peterson has raised

these issues in the state court proceedings, the plaintiffs’

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claims in this case are inextricably intertwined with the state

court proceedings. Peterson’s successful prosecution of his

claims here would require this court to invalidate or reverse

state court rulings. Once the state court enters a final

judgment, Rooker-Feldman will preclude this court from exercising

jurisdiction over plaintiff’s claims. 

Conclusion

For the foregoing reasons, I recommend that this complaint

be dismissed. I further recommend that the motion for a

preliminary injunction be denied as moot. Any objections to this

Report and Recommendation must be filed within ten (10) days of

receipt of this notice. Failure to file objections within the

specified time waives the right to appeal the district court’s

order. See Unauthorized Practice of Law Comm. v. Gordon, 979

F.2d 11, 13-14 (1st Cir. 1992); United States v. Valencia-Copete,

792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: December 28, 2006

cc: Warren E. Peterson, pro se

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