UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Kevin Hall

v. Civil No. 08-cv-494-PB

Steven Markiewicz, Esq.

REPORT AND RECOMMENDATION

Before the Court is Kevin Hall’s damages action (document

no. 1), alleging that defendant, Steven Markiewicz, a courtappointed guardian ad litem (“GAL”), violated Hall’s rights. As

Hall is a prisoner, the matter is before me for preliminary

review to determine, among other things, whether the complaint

states any claim upon which relief might be granted. See 28

U.S.C. § 1915A(a); United States District Court District of New

Hampshire Local Rule (“LR”) 4.3(d)(2)(A).

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. LR

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

construes pro se pleadings liberally, however inartfully pleaded. 

Case 1:08-cv-00494-PB Document 17 Filed 04/27/09 Page 1 of 8
2

See Erickson v. Pardus, 551 U.S. 89, ___, 127 S. Ct. 2197, 2200

(2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) 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.” See

Castro v. United States, 540 U.S. 375, 381 (2003) (noting that

courts may construe pro se pleadings so as to avoid

inappropriately stringent rules and unnecessary dismissals of

claims); Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 

All of the factual assertions made by a pro se plaintiff and

inferences reasonably drawn therefrom must be accepted as true. 

See id. This review ensures that pro se pleadings are given fair

and meaningful consideration.

Background

On March 4, 2007, Kevin Hall’s mother died while Hall was

incarcerated. Hall’s stepfather, Douglas Ross, became the

administrator of Hall’s mother’s estate, and hired Attorney

Howard Lane to assist him in executing the duties attendant to

that position. Hall alleges that Lane and Ross filed documents

Case 1:08-cv-00494-PB Document 17 Filed 04/27/09 Page 2 of 8
3

in the Cheshire County Probate Court (“CCPC”) which were false

and fraudulently represented Mrs. Ross’ estate to be worth

significantly less than Hall asserts it was actually worth. In

doing so, Hall alleges, they were attempting to deprive him of

his property interest in his mother’s estate. After a December

2007 phone conference with the CCPC, involving Hall, Ross, and

Lane, the CCPC appointed Steven Markiewicz as a GAL for Hall due

to Hall’s mental illness. Hall claims that Markiewicz refused to

assist him and ignored multiple requests from Hall to obtain

documents Hall claims the CCPC had ordered Lane and Ross to

produce. Markiewicz, in his capacity as Hall’s GAL, issued a

report to the probate court which the court accepted, over Hall’s

objection. Hall states that the CCPC ruled that “no further

action” was required on Hall’s claims there due to the content of

the report. Hall claims that Markiewicz failed to adequately

represent his interests in the CCPC because he was Ross’

neighbor, and therefore conspired with Ross and Hall to deprive

Hall of his interest in his mother’s estate. 

Case 1:08-cv-00494-PB Document 17 Filed 04/27/09 Page 3 of 8
142 U.S.C. § 1983 states, in relevant part: 

Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any 

State or Territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen of 

the United States or other person within the 

jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party 

injured in an action at law, suit in equity, or 

other proper proceeding for redress. . . .

4

Discussion

I. Quasi-Judicial Immunity

A government official may be held personally liable under 42

U.S.C. § 1983 if, acting under color of state law, the official

caused the deprivation of a federal constitutional or statutory

right. See Kentucky v. Graham, 473 U.S. 159, 166 (1985).1 Hall

claims that defendant, as a court-appointed GAL, acted under

color of state law and violated Hall’s constitutional rights. 

Accordingly, Hall’s federal civil rights claim arises under §

1983. 

A GAL, by virtue of being appointed by a judge and acting in

the service of the court, acts as a government official when

performing those duties delegated to the GAL by the court. See

Marr v. Me. Dep’t of Human Servs., 215 F. Supp. 2d 261, 267-68

(D. Me. 2002). Government officials performing judicial,

Case 1:08-cv-00494-PB Document 17 Filed 04/27/09 Page 4 of 8
5

legislative, or prosecutorial functions have been afforded

absolute immunity, which applies “however erroneous the act or

injurious its consequences.” Id. at 267 (citing Cleavinger v.

Saxner, 474 U.S. 193, 199-200 (1985)). “Absolute judicial

immunity attaches when a GAL performs certain delegated duties

because of the intimate relationship between the GAL and the

court in the judicial process.” Marr, 215 F. Supp. 2d at 268

(citing Hughes v. Long, 242 F.3d 121, 125 (3d Cir. 2001)). A GAL

is afforded “quasi-judicial” immunity, a form of absolute

immunity, for acts “closely associated with the judicial

process.” Marr, 215 F. Supp. 2d at 268 (quoting Cleavinger, 474

U.S. at 200); see Cok v. Cosentino, 876 F.2d 1, 3 (1st Cir. 1989)

(GAL performing actions to aid court and at the direction of the

court that are quasi-judicial, in that they are ‘closely

associated with the judicial process,’ entitled to absolute

immunity). The GAL’s preparation of a report to assist, and at

the behest of, the appointing court has been found to be

“intimately related to the judicial process.” Cok, 876 F.2d at

3; see Marr, 215 F. Supp. 2d at 268-69. While a GAL acting

outside the scope of his duties would not be entitled to absolute

immunity, see Cok, 876 F.2d at 3, there is no indication here

Case 1:08-cv-00494-PB Document 17 Filed 04/27/09 Page 5 of 8
6

that Markiewicz did anything except write a report and

recommendation to the CCPC, after being appointed by that court

to do so. Accordingly, I find that Markiewicz’s actions fell

within the quasi-judicial function of his appointment and entitle

him to absolute immunity from suit. I recommend dismissal of

this action on that basis.

II. State Law Claims

By alleging that he is a citizen of the State of New York

and that his damages exceed $75,000, I presume that Hall is

attempting to bring state law claims here, pursuant to the

diversity jurisdiction of this Court. See 28 U.S.C. § 1332

(establishing the jurisdiction of the federal district courts

over actions based on state law where the parties are of diverse

citizenship and the amount in controversy exceeds $75,000). Hall

alleges that defendant is a citizen of New Hampshire, while he is

a citizen of New York, and that the amount in controversy exceeds

$75,000.

Hall alleges that he is a citizen of New York by virtue of

his present incarceration in a New York prison. “For purposes of

federal diversity jurisdiction, an individual's state citizenship

is equivalent to domicile.” Smith v. Cummings, 445 F.3d 1254,

Case 1:08-cv-00494-PB Document 17 Filed 04/27/09 Page 6 of 8
7

1259 (10th Cir. 2006) (citing Crowley v. Glaze, 710 F.2d 676, 678

(10th Cir. 1983)). “Because domicile is a voluntary status, a

prisoner is presumed to be a citizen of the state of which he was

a citizen before his incarceration, even if he is subsequently

incarcerated in another state.” Smith, 445 F.3d at 1260. Here,

the record suggests that Hall was a citizen of New Hampshire

prior to his incarceration in New York, therefore, he is presumed

to be a citizen of New Hampshire for purposes of establishing

domicile. “The presumption, however, is rebuttable.” Id. If,

for example, a prisoner intends to live in another state upon

release and is assigned to a prison in that state, his domicile

may become that state. See id. Factors to be considered in

determining domicile include the prisoner's declaration of his

intentions and the manner in which he has ordered his personal

and business transactions and any other factors that are relevant

to the corroboration of his statements. Id. Hall has neither

alleged that he intends to live in New York after he is released

nor identified any factors indicating or supporting such an

intent. Consequently, he is presumed to be a resident of New

Hampshire, the state in which he was incarcerated before the New 

Case 1:08-cv-00494-PB Document 17 Filed 04/27/09 Page 7 of 8
8

Hampshire Department of Corrections occasioned his transfer to

New York prison. 

As the parties in this action are both New Hampshire

residents, they are nondiverse. Hall has therefore failed to

plead diversity jurisdiction under 28 U.S.C. § 1332, and I

recommend that any state law claim he intended to bring, relying

on the existence of diversity jurisdiction, be dismissed.

Conclusion

For the foregoing reasons, I recommend that this action be

dismissed in its entirety, as Hall has failed to state any claim

upon which relief might be granted. See LR 4.3(d)(2)(A). 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: April 27, 2009

cc: Kevin Hall, pro se

Case 1:08-cv-00494-PB Document 17 Filed 04/27/09 Page 8 of 8