UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Warren E. Peterson,

Plaintiff

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

Opinion No. 2007 DNH 067

Eileen Fox, Clerk of the

New Hampshire Supreme Court;

and Wilda R. Elliott, Clerk

of the Brentwood Family Court,

Defendants

O R D E R

Plaintiff has filed an “original Complaint and Request for

Injunctive and Declaratory Relief” naming Eileen Fox, Esq., and

Wilda R. Elliott as defendants. Eileen Fox is the Clerk of the

New Hampshire Supreme Court and Wilda R. Elliott is the Clerk of

the Brentwood Family Court.

Essentially, plaintiff has come to federal court seeking

relief from a New Hampshire Supreme Court order requiring him to

provide transcripts of lower court proceedings, at his expense,

as a condition of continuing with his appeal of an order of the

Brentwood Family Court denying him visitation with his minor son.

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Plaintiff says he is indigent, unable to pay for the

required transcript, and is entitled under the national

constitution to a free transcript (or a meaningful appeal

uninhibited by his indigency), given the fundamental nature of

the right he seeks to vindicate — the right of family association

with his minor child.

The magistrate judge has reviewed the complaint under United

States District Court for the District of New Hampshire Local

Rule (“LR”) 4.3(d)(2)(A) to determine whether this court’s

subject matter jurisdiction has been properly invoked, whether

the complaint states a viable legal claim, and whether the named

defendants are immune from liability. In his Report and

Recommendation (document no. 7), the magistrate judge concluded

that the complaint should be dismissed and plaintiff’s motion for

injunctive relief denied. Plaintiff filed a timely objection.

Background

Plaintiff and his former wife divorced some time ago. 

Custody and visitation issues related to their minor son proved

contentious and, after plaintiff was hospitalized with bouts of

depression on different occasions, he kidnaped his former wife at

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gunpoint. He was charged, convicted, and is currently serving a

state sentence in the New Hampshire State Prison.

The Brentwood Family Court has entered orders denying

plaintiff visitation with his son over the years, and plaintiff

has appealed the latest denial to the New Hampshire Supreme

Court. Plaintiff says that if that appeal is dismissed, he will

not be able to renew his request for visitation for another three

years (having already been denied contact with his son for

approximately seven years).

Pursuant to state law and applicable rules of procedure, the

New Hampshire Supreme Court accepted plaintiff’s appeal, but

directed him to have a transcript of the family court proceedings

prepared and filed, at his expense, as a condition of proceeding

with the appeal. Plaintiff apparently moved the court to waive

the transcript fees and provide a free transcript based upon his

asserted indigency, but that motion was denied. Failure to file

the transcripts will, according to the New Hampshire Supreme

Court’s order, result in dismissal of the appeal.

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After plaintiff filed this suit, the New Hampshire Supreme

Court (Hicks, J.) entered an order staying appellate proceedings

pending resolution of this matter.

Discussion

Plaintiff’s complaint raises important and developing due

process and equal protection issues. Parents unquestionably

enjoy a recognized and fundamental liberty interest in the care,

custody, and control of their children. M.L.B. v. S.L.J., 519

U.S. 102 (1996). And, the Due Process Clause of the Fourteenth

Amendment provides that no state shall “deprive any person of . .

. liberty . . . without due process of law,” which includes a

right to protection from unjustified governmental interference

with certain fundamental rights and liberty interests.

In M.L.B., supra, the Supreme Court held that Mississippi

could not withhold a record of sufficient completeness to permit

appellate consideration of an indigent mother’s appeal of an

order terminating her parental rights. Justice Kennedy,

concurring, noted that “given the existing appellate structure in

Mississippi, the realities of the litigation process, and the

fundamental interests at stake in this particular proceeding, the

State may not erect a bar in the form of transcript and filing

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costs beyond this petitioner’s means.” Id., at 129. M.L.B.

involved a permanent termination of parental association, so

might be distinguished from this plaintiff’s circumstances on

that ground. But, the Supreme Court has acknowledged the

fundamental nature of a parent’s right to control visitation with

his or her child, and, perhaps, implicitly, the right to maintain

a parental and familial association through visitation. See

Troxel v. Granville, 530 U.S. 57 (2000). But whether an extended

denial of all visitation by a parent with his child is

sufficiently equivalent to a termination of parental rights to

warrant application of the rule in M.L.B. has yet to be

determined.

If plaintiff is truly indigent, and if the required

transcript fee is beyond his means, and his appeal is terminable

for failure to pay the fee, plaintiff may well describe a viable

claim that he has been deprived of his constitutional right to

due process and to access the courts. On the other hand, the

holding of M.L.B. may not be extended beyond parental rights

termination cases to reach a state’s denial of parental

visitation as well.

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In any event, the magistrate judge is right in recommending

dismissal of the complaint and denial of injunctive relief in

this case. Plaintiff is engaged in an ongoing proceeding in New

Hampshire’s courts, which courts are fully capable of fairly

adjudicating his federal constitutional claim to a free

transcript or a sufficiently complete record to permit appellate

consideration of his appeal of the order denying him visitation

with his son. Plaintiff is obligated to pursue that appeal and,

if relief is not afforded, to seek further review of his federal

constitutional claims in the United States Supreme Court.

While, strictly speaking, the Rooker-Feldman doctrine does

not apply as yet (no final judgment having been entered by a

state court, see Exxon Mobil Corp v. Saudi Basic Indus. Corp.,

544 U.S. 280, 291 (2005)), I agree that Younger abstention

principles do. See Younger v. Harris, 401 U.S. 37 (1971). In

addition, the Anti-Injunction Act, 28 U.S.C. § 2283, precludes

this court from enjoining the ongoing state court proceedings

plaintiff describes. As set out in the Report and

Recommendation, plaintiff’s complaint does not state a viable

legal claim upon which relief can be granted by this court.

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Conclusion

The Report and Recommendation is approved and adopted and

the complaint is dismissed. The clerk shall close this case.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

May 17, 2007

cc: Warren E. Peterson, pro se

Nancy Smith, Esq.

Eileen Fox, Esq.,

Clerk, NH Supreme Court

(In re Case No. 2006-0689)

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