UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Steven P. Lemay

v. Civil No. 08-cv-157-JL

State of New Hampshire, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff Steven P. Lemay brings this action,

pursuant to 42 U.S.C. § 1983, seeking damages and equitable

relief for defendants’ alleged wrongful removal of his minor

child from his custody (document no. 1). Named as defendants are

the State of New Hampshire, the New Hampshire Department of

Health and Human Services, Division for Children, Youth and

Families, Guardian Ad Litem Peter Brunette and the following

individuals: Kris Keeler; Nancy Montgomery; and Maggie Bishop. 

The complaint is before me for preliminary review to

determine, among other things, whether Lemay has properly invoked

the subject matter jurisdiction of this court. See United States

District Court of the District of New Hampshire Local Rules

(“LR”) 4.3(d)(1) (A). For the reasons stated below, I recommend

that the complaint be dismissed as time-barred.

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Standard of Review

In reviewing a pro se complaint, this court must construe

the pleadings liberally and in favor of the pro se litigant. See

Ayala Serrano v. Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)). At this

preliminary stage of review, all factual assertions made by a

plaintiff and the inferences reasonably drawn therefrom must be

accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st

Cir. 1996)(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 meaningful

consideration. See Eveland v. Director of CIA, 843 F.2d 46, 49

(1st Cir. 1988). I apply this standard in reviewing Lemay’s

complaint.

Background

This action stems from the alleged wrongful removal of

Lemay’s minor child, Steven Lemay, Jr., from his custody on

October 15, 2004. Lemay claims that his son, born on August 20,

1997, was in his custody for seven years. As a single parent,

Lemay allegedly provided his son with care and met his physical

and emotional needs during that seven-year period. When Steven

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Lemay, Jr. was leaving school on October 15, 2004, defendants

allegedly unjustifiably and physically removed him from his

father’s custody. Lemay asserts that defendants’ actions were

taken in reliance upon statements made by a non-physician

emergency room employee who reported that he was delusional and

presumably unable to care for his child.

While Steven Lemay, Jr. was temporarily in state custody,

Peter Brunette, the child’s guardian ad litem, allegedly sought

to terminate Lemay’s parental rights, seek permanent custody of

the child and deny Lemay visitation rights. The record is silent

as to the pendency of any state court and administrative

proceedings. As a result of defendants’ actions, Lemay allegedly

has been denied the opportunity to maintain a daily loving

relationship with his son for more than three years. In

addition, defendants allegedly have caused Lemay “extreme and

irreversible emotional harm, pain and suffering that caused him

to lose his business and home.” Lemay now brings this action,

seeking damages and equitable relief for defendants’ alleged

violation of his “constitutional right to care for his child.” 

Discussion

Upon review of the record it is clear that Lemay’s claims,

arising from defendants’ removal of his son from his custody on

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October 15, 2004, are time-barred because of his failure to file

within the statutory limitations period.

In adjudicating civil rights claims under 42 U.S.C. § 1983,

federal courts borrow the statute of limitations applicable to

personal injury actions under the law of the forum state. See

Wilson v. Garcia, 471 U.S. 261, 276-80 (1985); accord Cao v.

Puerto Rico, 525 F.3d 112, 115 (1st Cir. 2008)(citing RuizSulsona v. Univ. of P.R., 334 F.3d 157, 159 (1st Cir. 2003)). 

The applicable statute in this case is New Hampshire Revised

Statutes Annotated § 508:4, I (2007), which establishes a threeyear limitations period for personal injury actions in New

Hampshire. Under federal law, which governs the accrual of

claims brought pursuant to Section 1983, a claim accrues once the

aggrieved person knows, or should have reason to know, of the

injury on which the action is based. See Carreras-Rosa v. AlvesCruz, 127 F.3d 172, 174 (1st Cir. 1997).

Here, Lemay alleges that his son was removed from his

custody on October 15, 2004. He concedes that “[t]his case arose

on or about October 15, 2004 when the defendants removed the

plaintiff’s child from his care and custody and placed the minor

child into their custody without probable cause . . .” Thus, it

appears that Lemay knew, or should have known, of his injury on

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October 15, 2004 and that his claims accrued no later than that

date. Because he filed the instant complaint on April 24, 2008,

after the three-year limitations period had expired for his

claims, I conclude that his claims are untimely. Lemay has

demonstrated no reason why the limitations period should be

tolled. Accordingly, I recommend that his complaint be dismissed

as time-barred.

Conclusion

For the foregoing reasons, I recommend that Lemay’s

complaint (document no. 1) be dismissed as time-barred.

If this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for all

purposes to be the claims raised in the complaint. If the

plaintiff disagrees with the identification of the claims herein,

he must do so by objection filed within ten (10) days of receipt

of this report and recommendation, or he must properly move to

amend the complaint. 

Any further objections to this report and recommendation

must be filed within ten days of receipt of this notice. Failure

to file an objection within the specified time waives the right

to appeal the district court’s order. See Unauthorized Practice

of Law Committee v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);

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United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

__________________________________

James R. Muirhead

United States Magistrate Judge

Date: September 25, 2008 

 cc: Steven P. Lemay, pro se

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