UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

John A. Baldi,

Plaintiff

v. Civil No. 07-cv-24-SM

Opinion No. 2007 DNH 060

Roland Brown; Gail Brown;

Charles Russell; Town of

Epsom, NH; Merrimack County

Sheriff’s Department;

NH Department of Environmental

Services; and William McGraw,

Defendants

O R D E R

In keeping with his colorful, but entirely acerbic and

inappropriate personal style, Baldi has filed yet another

meandering and off-the-main-road pleading. But unlike most of

his inept legal efforts, he seems to have stumbled upon a point —

not well articulated or developed — but a point nonetheless.

The court will address the controlling legal issue intimated

in Baldi’s pleading, but also hereby strikes that pleading upon

its own initiative as impertinent. Fed. R. Civ. P. 12(f). As

noted previously in this and other cases, Baldi is reported to

have graduated from a law school, though apparently he has not

been admitted to practice in any jurisdiction, and certainly is

not a member of the bar of this court. Had a member of the bar

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filed a pleading like Baldi’s, he or she would be promptly

referred to the appropriate disciplinary body and would likely be

suspended from practicing law, if not disbarred altogether. As

he is not a practicing attorney, and is acting pro se, the

available sanctions are more limited. Baldi is hereby placed on

notice that future pleadings filed by him in this court that

contain “redundant, immaterial, impertinent, or scandalous

matter” within the meaning of Rule 12(f) will be summarily

stricken in their entirety and ignored, and increasingly severe

monetary sanctions will be imposed.

That having been said, in his objection and

Response/Memorandum (document no. 42) (which will be charitably

taken as a motion to reconsider the court’s order denying his

motion to remand), Baldi says that Defendant William McGraw not

only did not consent to removal of this suit to federal court,

but affirmatively opposed removal. Accordingly, Baldi argues,

the rule of unanimity was not met with respect to removal and the

case should have been remanded to state court. Baldi fails to

recognize that McGraw is a state official and to the extent he

has been sued in his official capacity, he is considered the

equivalent of the State of New Hampshire. Intimated in Baldi’s

pleading, however, is an implication (though not likely

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intentional) that Defendant McGraw was not sued solely in his

official capacity as a state officer (Clerk of the New Hampshire

Superior Court for Merrimack County) but, rather, was also sued

in his individual capacity. That would have been a significant

point, had it been made in the motion to remand.

Suing a state official in his or her official capacity is

just another way of suing the state itself. See Monell v. Dep’t

of Soc. Servs. of the City of N.Y., 436 U.S. 658, 690 n.55

(1978). Accordingly, Defendant McGraw, sued in his official

capacity, is considered to be the state, and the state need not

consent to removal. See, e.g., McConnell v. Fernandes, 2003 U.S.

Dist. LEXIS 23190, *4 (D.Mass. Dec. 29, 2003). But, if Defendant

McGraw is also sued in his individual capacity, then he is not

simply a stand-in for the state, but a defendant in his own

right, facing potential (however unlikely) personal liability for

money damages. In that capacity, as an individual defendant, he

had to give his timely consent to effect removal. It is plain

that he not only did not consent to removal, but affirmatively

objected (albeit as a “state defendant”). (See document no. 15.)

Baldi’s state court declaration (complaint) does not

identify the capacity in which McGraw is sued, and Baldi does not

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address the issue in his objection. Happily for Baldi, though he

does not raise the issue, the court of appeals for this circuit

recently joined the majority of circuits in adopting the “course

of proceedings” test to determine whether officials are sued

personally or in their official capacities, or both, when the

complaint fails to disclose capacity. Under that test, courts

consider the substance of the pleadings, the course of

proceedings, the nature of plaintiff’s claims, requests for

compensatory or punitive damages (only recoverable against an

official in his or her individual capacity), and the nature of

any defenses raised, particularly claims of qualified immunity

(also pertinent only to individual defendants). Powell v.

Alexander, 391 F.2d 1, 22 (1st Cir. 2004). Applying that test

here, it is apparent that Defendant McGraw has been sued, however

inartfully, in his individual capacity.

Baldi claims McGraw personally deprived him of alleged due

process rights, for which Baldi seeks money damages — from McGraw

rather than from the State, including punitive damages. The New

Hampshire Attorney General, counsel to McGraw, has also

interposed the defense (among others) of qualified immunity

(which only pertains to officials sued in their individual

capacities). (See document no. 14.)

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Taking those factors into account, and recognizing, as well,

that this litigation is in its early stages, id., the court

necessarily concludes that Baldi sued McGraw in his individual

capacity. And, because McGraw not only did not consent to

removal, but affirmatively opposed it, this case is remanded to

the New Hampshire Superior Court for failure to meet the

unanimity rule.

Conclusion

For the foregoing reasons, Baldi’s “objection” is stricken

under Rule 12(f), but on reconsideration, his motion to remand

(document no. 4) is granted. The clerk of court shall remand

this case to the New Hampshire Superior Court (Merrimack County).

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

April 27, 2007

cc: John A. Baldi, pro se

Charles A. Russell, Esq.

Brian J.S. Cullen, Esq.

John A. Curran, Esq.

Mary E. Maloney, Esq.

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