UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

B.K. et al.

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

Nicholas Toumpas et al.

SUMMARY ORDER

B.K., proceeding pro se and pseudonymously, has filed two

motions seeking various relief in this case--in which he, his

wife, and two of their minor children claim that their First

Amendment rights were violated when the children, who are

practicing Hindi, were temporarily placed with foster families

who served them beef and took them to Christian religious

services. The other plaintiffs, who are represented by counsel,

do not join in B.K.’s motions. Generally, B.K. seeks: (1) an

extension of the discovery deadline, (2) an order directing the

defendants, employees of the New Hampshire Department of Health

and Human Services and its Division for Children, Youth, and

Families, to produce records of the abuse and neglect proceedings

that led to the parents’ temporarily losing custody of the

children, and (3) an investigation into this case, and the

underlying proceedings, by the Federal Bureau of Investigation. 

These requests, and B.K.’s motions, are denied in their entirety.

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Under the scheduling order proposed by the parties

(apparently without any objection from B.K., at least as to the

dates), discovery was to have been completed by May 2, 2012. 

Document no. 56. B.K. argues that he needs additional time so

that he can propound interrogatories to and take depositions of

the defendants with the benefit of documents he says he has

requested but has yet to receive from the defendants: “all the

call logs and all the paperwork from the lower court,” including 

“all of the motions, hearings, judgments, tapes[,] videos,

warrants, and trials.”

The defendants have objected to producing these materials on

the grounds that B.K. did not request them sufficiently in

advance of the discovery deadline to give them the required 30

days to respond, see Fed. R. Civ. P. 34(b)(2)(A), and that the

request is vague and overbroad (though the defendants have agreed

to produce certain “call logs”). Whatever the merit of these

objections, the requested materials--which, as described by B.K.,

relate to the state-court abuse and neglect proceedings against

him and his wife in the state courts--are irrelevant to the

proceedings in this court. This is not, as B.K. seems to

believe, an appeal from the decision of a “lower court” on those

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issues. In fact, so far as this court can tell, this case has 1

nothing to do with the correctness, or even the fairness, of the

state court’s decisions that led to the temporary removal of

B.K.’s children from his home. Instead, as noted at the outset,

the claims in this case are that the defendants violated the

plaintiffs’ First Amendment rights after the children were

removed from B.K.’s home by placing them with foster families who

subjected them to practices abhorrent to their Hindu faith. The

records of the state-court abuse and neglect proceedings are

simply irrelevant to that claim and, for that reason alone, are

not the proper subject of discovery in this action. See Fed. R.

Civ. P. 26(b)(1).

It follows that B.K. is not entitled to an order compelling

the defendants to produce those records, nor an order extending

the discovery cutoff so that he has the opportunity to use those

records in formulating questions to ask the defendants in

interrogatories or depositions. While B.K.’s motions also make

reference to his recent health problems, he does not claim that

those problems prevented him from seeking discovery in this case

It should be noted that, as provided by New Hampshire law, 1

the decision of the Family Court that B.K. had abused and

neglected his children, and that his wife had neglected them, was

reviewed by the Superior Court, which reversed the neglect

finding as to both parents, but upheld the abuse finding as to

B.K. B.K. then appealed that decision to the New Hampshire

Supreme Court, which affirmed the finding of abuse against him.

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in a timely manner. Accordingly, he has failed to demonstrate 2

the “good cause” necessary to extend the discovery deadline. See

Fed. R. Civ. P. 16(b)(4).

Finally, this court has no authority to order the FBI to

commence an investigation. Because “[t]he decision of whom to

investigate and prosecute is one made by the Justice Department,

not the judiciary,” any “court order to the FBI to investigate

. . . would be a clear violation of separation of powers.” 

Rodosh v. Jones, 161 F.3d 14 (9th Cir. 1998) (table), 1998 WL

536989.

B.K.’s motions (document nos. 76-77) are therefore DENIED. 

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: June 1, 2012

cc: B.K., pro se

Nancy Sue Tierney, Esq.

James Spencer Culp, Esq.

Jeanne P. Herrick, Esq.

Nancy J. Smith, Esq.

Based on his health problems, B.K. seeks to change the time 2

of the final pretrial conference in this matter, scheduled for

September 21, 2012, from 9 a.m. to 1 p.m. If B.K.’s health

problems continue into September, he can simply notify the court

on or before September 10, 2012, and the time of the conference

will be rescheduled to a later hour that accommodates all parties

and their counsel.

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