UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

BK and SK

v. Civil No. 09-cv-94-JL

New Hampshire Department

of Health and Human

Services et al.

SUMMARY ORDER

This case raises the potentially important issue of whether

state authorities violate the free exercise rights of children,

or their parents, under the First Amendment by placing the

children with foster families who subject them to practices

abhorrent to their faiths. In this case, the plaintiffs are

Hindi who allege that the foster families fed the children beef

and took them to Christian religious services. That issue has

yet to be presented for decision, however, even though the case

has been pending for nearly two years (not counting a year that

it was stayed at the plaintiffs’ behest) and there has been

substantial motion practice.

First, the defendants, who include the New Hampshire

Department of Health and Human Services (“HHS”), its Division for

Children, Youth and Families (“DCYF”), one of its district

offices, and a number of their employees, moved to dismiss the

plaintiffs’ First Amendment claim because they “alleged no

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statutory vehicle for redress of it”--in other words, they

neglected to cite 42 U.S.C. § 1983. That motion was denied

because, while the plaintiffs did not need to cite the specific

statutory provision to state a claim for relief, they did just

that in their amended complaint anyway. BK v. N.H. Dep’t of

Health & Human Servs., 2011 DNH 157, 8-10. Now, the defendants

have filed what amounts to a partial motion for judgment on the

pleadings on the plaintiffs’ First Amendment claim, arguing that

it seeks only monetary damages, but the defendants--insofar as

they include state agencies, or state employees sued in their

official capacities--are immune from that relief here by virtue

of the Eleventh Amendment.

That argument is correct. “[I]t is settled beyond

peradventure . . . that neither a state agency nor a state

official acting in his official capacity may be sued for damages

in a section 1983 action.” Johnson v. Rodriguez, 943 F.2d 104,

108 (1st Cir. 1991) (citing Will v. Mich. Dep’t of State Police,

491 U.S. 58, 71 (1989)); see also, e.g., Fantini v. Salem State

Coll., 557 F.3d 22, 33 (1st Cir. 2009). The plaintiffs’

objection to the motion for judgment on the pleadings misses this

point entirely, arguing, among other things, that (1) their First

Amendment rights were indeed violated, even if for only brief

periods of time, (2) they are entitled to monetary relief as a

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result, (3) the defendants are not entitled to a defense of

qualified immunity, and (4) certain defendants are subject to

supervisory liability. None of that has anything to do with

Eleventh Amendment immunity. That immunity, as just noted, bars

the plaintiffs’ claims for money damages--which, again, is the

only relief the plaintiffs have sought--against the state

agencies and state employees, insofar as they have been named in

their official capacities.

But the plaintiffs have also named each of the state

employees in his or her individual capacities. As the defendants

acknowledge, the Eleventh Amendment has no effect on those

claims. See, e.g., Alden v. Maine, 527 U.S. 706, 757 (1999) (“a

suit for money damages may be prosecuted against a state officer

in his individual capacity for unconstitutional or wrongful

conduct fairly attributable to the officer himself”). Indeed,

the defendants have not even sought judgment on the pleadings as

to those claims. So the upshot of their motion is that they

obtain judgment on the claims against the state agencies, as well

as the claims against the state employees in their official

capacities--but the plaintiffs’ claims against the state

employees in their individual capacities remain. 

Accordingly, the defendants’ motion for judgment on the

pleadings (document no. 63) is GRANTED, insofar as it seeks

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judgment on the plaintiffs’ claims against HHS, DCYF, its

Claremont District Office, and the individual defendants in their

official capacities. Furthermore, all claims by or on behalf of

one of the children, “KK,” are DISMISSED without prejudice based

on the plaintiffs’ statement in their objection that she “is no

longer a party to the pending action.” Accordingly, HHS, DCYF,

the Claremont District Office, and KK are TERMINATED as parties

in this matter. 

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: March 7, 2012

cc: Nancy Sue Tierney, Esq.

B.K., pro se

James Spencer Culp, Esq.

Jeanne P. Herrick, Esq.

Nancy J. Smith, Esq.

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