UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

BK

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

Opinion No. 2012 DNH 192

Nicholas Toumpas et al.

SUMMARY ORDER

This case raises the important, and potentially difficult,

issue of whether state authorities violate parents’ free exercise

rights by placing their children with foster families who subject

children to practices at odds with their religious upbringing. 

Through the sole remaining claim, “BK,” proceeding pro se as well

as pseudonymously, seeks to recover monetary damages against the

defendants (the director and several employees of the New

Hampshire Department of Health and Human Services and its

Division for Children, Youth, and Families) under 42 U.S.C. §

1983. He alleges that, after he temporarily lost custody over

his three minor children, the defendants knowingly placed or left

the children in the homes of foster families who served them beef

and took them to Christian religious services--practices

abhorrent to their upbringing in the Hindu faith. This court has

jurisdiction under 28 U.S.C. § 1331 (federal question).

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The defendants have moved for summary judgment. See Fed. R.

Civ. P. 56. They argue that:

(1) any rational factfinder would have to conclude

that, in handling the children’s foster care

placements, the defendants made “reasonable efforts” to

ensure that BK’s “religious preferences [were]

respected,” so that no Free Exercise violation

occurred;

(2) in any event, they are entitled to qualified

immunity, because no reasonable official in their

position would have known he or she was violating the

plaintiffs’ clearly established free exercise rights;

(3) certain of the defendants were not personally

involved in any deprivation of those rights, even if

there was one, and

(4) BK has failed to respond to any of the defendants’

discovery requests, including requests for admissions,

see Fed. R. Civ. P. 36, warranting dismissal of his

case as a sanction.

Because, for the reasons discussed infra, the court rules that

the defendants are entitled to qualified immunity, it need not

and does not reach their other arguments for summary judgment.

Procedural background

Before addressing the merits of the qualified immunity

argument, however, the court pauses to review the complicated

procedural travail of this case so as to make clear exactly what

claims remain for disposition on summary judgment. The original

complaint, consisting of seven separately numbered counts against

eight separately named defendants, was filed by counsel on behalf

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of BK, and his then-wife “SK,” both individually and in their

capacity as guardians and next friends of their three minor

children, “M,” “K,” and “B.” After the defendants moved to

dismiss the complaint in its entirety for failing to state a

claim for relief, see Fed. R. Civ. P. 12(b)(6), the plaintiffs

filed an amended complaint dropping one of the counts and

modifying others. Neither the original nor the amended complaint

made any claim against any of the foster parents.

Before the court ruled on the motion to dismiss, counsel for

the plaintiffs sought leave to withdraw from her representation

of BK, stating that SK’s seeking a legal separation from him

created a conflict of interest for counsel. The plaintiffs also

sought a stay of the action to enable BK to secure new counsel. 

This relief was granted without objection. After being advised

that BK had traveled to India without leaving word as to whether

he had found a lawyer to appear for him in this case, the court

administratively closed it, ordering a status report to be made

every 90 days. Order of Dec. 8, 2009.

The case remained closed until the following September, when

the defendants informed the court that they had received word

that BK was “prepared to proceed pro se and will continue to

attempt to obtain counsel.” Acting on a subsequent motion by BK,

the court allowed him additional time to find an attorney, but

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ordered that the case would proceed on January 1, 2011

regardless. Order of Nov. 30, 2010. After that date passed

without the appearance of new counsel for BK, the defendants

reinstated their motion to dismiss, which had been denied without

prejudice as a result of the stay, and the plaintiffs reinstated

their objection. Following further briefing, as well as oral

argument--at which BK appeared pro se--the court granted the

defendants’ motion to dismiss except as to the plaintiffs’ claims

alleging violations of their First Amendment rights. BK v. N.H.

Dep’t of Health & Human Servs., 814 F. Supp. 2d 59 (D.N.H. 2011). 

The defendants later filed a motion for judgment on the

pleadings, see Fed. R. Civ. P. 12(c), arguing that the Eleventh 

Amendment barred plaintiffs’ claims against HHS, DCYF, and the

other defendants in their official capacities. The court granted

that motion, and also dismissed, without prejudice, all remaining

claims by one of the children, K, who had reached the age of

majority since the lawsuit was filed and no longer wished to

pursue it. Order of Mar. 7, 2012.

A few months later, counsel for SK sought leave to withdraw

from representing her, saying that the task had become

unreasonably difficult due to BK’s interference. BK, but not SK,

filed a response, purporting to object to SK’s counsel’s

withdrawal. While that request was pending, the defendants filed

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their motion for summary judgment on all of the plaintiffs’

remaining claims. The court later granted SK’s counsel “leave to

withdraw from her representation of SK, both in her individual

capacity and in her capacity as the guardian of certain of her

minor children who are also named as plaintiffs here.” Order of

June 22, 2012. In light of the defendants’ pending summary

judgment motion, however, the court ruled that counsel for SK

could not withdraw immediately, but only upon “the filing of SK’s

response to the summary judgment motion.” Id. The court also

granted SK’s request for additional time to respond to the

defendants’ motion for summary judgment, and “strongly advised”

SK “to begin efforts to find replacement counsel immediately, in

the event the motion for summary judgment is denied and the case

proceeds to trial.” Id.

Thus, after SK, through counsel, filed an objection to the

summary judgment motion, her counsel withdrew from the case.1

Prior to that point, the court had ordered SK to advise it by

BK has never filed any response to the summary judgment 1

motion. Regardless, the court cannot simply grant the motion as

unopposed, but “must assure itself that the moving party’s

submission shows that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment

as a matter of law.” NEPSK, Inc. v. Town of Houlton, 283 F.3d 1,

7 (1st Cir. 2002) (quotation marks omitted). In discharging this

duty, the court has given full consideration to SK’s summary

judgment objection, filed by counsel before she withdrew. 

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August 17, 2012, “of the name of a new attorney or, in the

alternative, of [her] decision to appear pro se,” warning her

that “[i]f no new appearance or other response is received within

the time specified, the file will be referred to the clerk for

entry of default.” Order of July 3, 2012. Before that deadline

arrived, however, the court granted yet another motion by BK to

stay the case, this time until September 5, 2012. Order of

August 13, 2012. After this stay expired, the court issued an

order reminding SK that she “was previously directed to either

provide the name of a new attorney or a pro se appearance,” and

directed her to do so “within 10 days of this order. Failure to

comply with this order may result in dismissal.” Order of Sept.

27, 2012. After SK failed to respond, the court dismissed her

from the action without prejudice. Order of Oct. 15, 2012.

Analysis

 The only claims left in the case, then, are BK’s claims

against the remaining defendants under § 1983. As set forth in

the amended complaint at counts 1-2, these claims allege that the

defendants violated the plaintiffs’ First Amendment rights

(specifically, their “right of freedom of religion”) in that:

(1) despite the children’s upbringing “in a home in

which the cow was treated as a sacred animal,” the

defendants--who had been “informed of the plaintiffs’

religious beliefs”--placed the children in foster homes

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“which did not recognize the plaintiffs’ religious

beliefs and which, in fact, violated them by cooking,

consuming and serving beef,” and, “[w]hen confronted

with this violation,” refused to move the children to

different homes, and rejected SK’s offer “to cook and

supply food for the children to ensure that the meals

they were eating did not violate their religious

beliefs”; and

(2) “[k]nowing she and her family were members of the

Hindu faith,” and despite BK’s and SK’s objection, the

defendants “placed K in the home of a practicing

minister,” who later took her to his church; B’s foster

family took her to the same church. 

Count 3 alleges that “placing the children in a home where

they were not permitted nor able to follow their religious diet”

and “[p]lac[ing] K in the home of a minister . . . who involved K

with the church . . . burdened [the children’s] ability to

exercise their religion.” As such, this count appears to invoke

the Free Exercise rights of the children, rather than those of

BK. The claims brought on behalf of the children, however, have

all been dismissed: K’s claims were dismissed without prejudice

when she informed the court she no longer wished to pursue them,

while the other children’s claims were dismissed without

prejudice when SK--who had brought those claims in her capacity

as the children’s next friend and guardian--was dismissed from

the case for failing to respond to this court’s orders. The 2

While BK also purported to appear as the children’s next 2

friend and guardian, his continued authority to do so is unclear,

given the statements by plaintiffs’ former counsel in her first

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only remaining counts are counts 1 and 2 of the amended complaint

insofar as they allege that the defendants violated BK’s right to

religious freedom under the First Amendment.

The court agrees with the defendants that they enjoy

qualified immunity from these claims. “Qualified immunity

shields . . . state officials from money damages unless a

plaintiff pleads facts showing (1) that the official violated a

constitutional or statutory right and (2) that the right was

clearly established at the time of the challenged conduct.” 

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (quotation

marks omitted). For a right to be “clearly established” for

purposes of this inquiry, “[t]he contours of the right must have

been sufficiently clear that a reasonable official would

understand what he is doing violates that right. This is not to

say that an official action is protected by qualified immunity

unless the very action in question has previously been held

unlawful, but it is to say that in the light of pre-existing law

motion to withdraw that SK was seeking a legal separation from BK

and that “[t]he minor children will remain with SK.” In any

event, while BK can litigate his own claims pro se, he cannot

litigate the children’s claims in that capacity, because the

children “cannot authorize another person who is not a member of

the bar of this court to appear on [their] behalf.” L.R.

83.6(b); see also Herrera-Venegas v. Sanchez-Rivera, 681 F.2d 41,

42 (1st Cir. 1982) (“By law an individual may appear in federal

courts only pro se or through legal counsel,” and not through

“third-party lay representation”). 

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the unlawfulness must be apparent.” Anderson v. Creighton, 483

U.S. 635, 640 (1987) (citations omitted).

Even assuming, dubitante, that the defendants’ actions in

first placing, and then leaving, BK’s children in foster homes

where they were subjected to practices at odds with their

religious upbringing violated his right to free exercise, the

unconstitutionality of those actions would not have been clear to

a reasonable official at that time (or, indeed, even now). It is

clear, of course, that the Free Exercise clause protects

“traditional concepts of parental control over the religious

upbringing and education of their minor children.” Wisconsin v.

Yoder, 406 U.S. 205, 231 (1972). Indeed, the Supreme Court has

repeatedly recognized “[t]he rights of children to exercise their

religion, and of parents to give them religious training and to

encourage them in the practice of religious belief, as against

preponderant sentiment and assertion of state power voicing it.” 

Prince v. Massachusetts, 321 U.S. 158, 165-66 (1944) (citing

cases). These rights, however, are not absolute: the state

retains “a wide range of power for limiting parental freedom and

authority in things affecting the child’s welfare; and this

includes, to some extent, matters of conscience and religious

conviction.” Id. at 167.

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So, by way of example, the Supreme Court has ruled that the

Free Exercise clause does not prevent states from enforcing child

labor laws against parents who cause their children to

proselytize in public places, id. at 170, but it does prevent

states from enforcing compulsory public school attendance laws

against parents whose religion forbids formal schooling beyond

the eighth grade, Yoder, 406 U.S. at 234, or whose religion

dictates that children attend private schools where they can

“receive appropriate mental and religious training,” Pierce v.

Soc’y of Sisters, 268 U.S. 510, 532-35 (1925). But the Supreme

Court has never considered whether the Free Exercise clause

prevents states from placing children with foster families whom

state officials know, or have reason to know, will subject the

children to practices at odds with their religious upbringing.3

Despite this, a few federal courts have held, or at least

suggested, that “parents’ wishes with regard to their children’s

religious training while in state custody are afforded some

constitutional protection.” Bruker v. City of N.Y., 92 F. Supp.

2d 257, 267 (S.D.N.Y. 2000); see also Pflotzer v. County of

Fairfax, 996 F.2d 1443 (table), 1992 WL 137512 (4th Cir. 1992)

(unpublished disposition) (“With respect to children in foster

Nor, for that matter, has our court of appeals. 3

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care, a state is required to make reasonable efforts to

accommodate the parent’s religious preferences.”); Starkey v.

Miller, No. 06-659, 2007 WL 4522702, at *12 (D. Colo. Dec. 17,

2007) (same); Walker v. Johnson, 891 F. Supp. 1040, 1049 (M.D.

Pa. 1995) (recognizing parents’ “limited rights to control the

religious upbringing” of a child in foster care). As authority

for this view, these courts have relied on (in addition to each

other) the decision by the Second Circuit Court of Appeals in

Wilder v. Bernstein, 848 F.2d 1338 (2d Cir. 1988). In this

court’s estimation, however, it is at best unclear whether Wilder

supports this view of the law.

The court in Wilder rejected challenges to “the settlement

of a class action that effect[ed] major changes in the way New

York City discharges its obligations to arrange for the care of

children requiring placement in institutions and foster homes.” 

Id. at 1340. As originally filed, the class action alleged that

“state law provisions regarding religious matching in connection

with publicly funded child care placements”--under which the

majority of the foster children in the city were placed in

institutions run by religiously affiliated private agencies--ran

afoul of the Establishment Clause. Id. at 1342.

In relevant part, these provisions required placing a foster

child, when “practicable,” in the custody of a person of the same

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religious faith, and “so as to give effect to the religious

wishes of the parents.” Id. at 1341-42 (quotation marks

omitted). In rejecting a facial challenge to these provisions,

the district court reasoned that they protected “the parents’

right to determine the religious upbringing of their children” as

well as “the children’s rights under the Free Exercise clause,”

and, as a result, that “countervailing circumstances” eliminated

any wholesale Establishment Clause problem. Id. (quotation marks

omitted). The plaintiffs then amended their complaint, adding

(among others) a claim that the foster care program “infringed on

the Free Exercise rights of Protestant children in that . . .

there are no [foster care] agencies operated by members of most

of the Protestant sects and that Protestant children are chilled

in the exercise of their own religion when placed in the care of

Catholic and Jewish agencies.” Id. at 1343. Significantly,

there was no claim that this aspect of the scheme violated the

Free Exercise rights of the parents of these children.

In any event, the district court never reached any further

decision on the merits of any of the claims, because the parties

settled them. Id. Under the settlement’s relevant provisions,

“[i]f the parents express a preference for a religious matching

placement, the City will be required to place the child in the

best available program of an agency with the preferred religious

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affiliation, provided there is a vacancy.” Id. at 1344. In

cases of no such vacancy, the settlement gave the parents “a

three-fold option” of waiting for the preferred program,

enrolling in “the next best ‘in-religion’ program,” or enrolling

in the “best available out-of-religion program.” Id. The

settlement also--“to meet concerns arising under the Free

Exercise clause”--required every foster care agency to agree, in

its contract with the City, to “provide comparable opportunities

for children to practice their own religion and observe religious

holidays, [to] permit but not require children in its care to

attend religious or holiday observances on its premises, [and not

to] impose religious dietary practices (to the extent

practicable) on children who do not wish to follow them.” Id.

Several of the religiously affiliated foster care agencies

challenged the settlement on a number of grounds, including that

“it infringe[d] the free exercise rights of children and their

parents.” Id. at 1345. In rejecting this challenge, the court

of appeals expressed “difficulty . . . in understanding precisely

what respect [the agencies] contend that parents or children are

likely to be denied their rights under the Free Exercise clause. 

Manifestly, nothing in the settlement in any way purports to

impair the right of any person to maintain his or her religious

beliefs.” Id. at 1346. The court further observed that, while

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the settlement had a “tendency to reduce the frequency of inreligion placements,” the agencies did not argue

that every child in need of institutional or foster

care has a constitutional right to have that care

provided by an agency of the child’s religion. The

context in which this lawsuit arose and has been

settled differs significantly from Pierce v. Society of

Sisters, supra. It is one thing to recognize the right

of parents to choose a religious school for their

children as a private alternative to meeting stateimposed educational requirements in public schools. It

is quite another matter, however, to suggest that

parents who are unable to fulfill their parental

obligations, thereby obligating the state to act in

their stead . . . nonetheless retain the constitutional

right to insist that their children receive statesponsored parenting under the religious auspices

preferred by the parents. So long as the state makes

reasonable efforts to assure that the religious needs

of the children are met during the interval in which

the state assumes parental responsibilities, the free

exercise rights of the parents and their children are

adequately observed.

Id. at 1346-47.

This court has serious difficulty reading that passage as a

statement of law that the Free Exercise clause requires a state

to make “reasonable efforts” to accommodate parents’ religious

preferences when placing their children in foster care. The

Wilder court’s remark that the state’s “reasonable efforts to

assure that the religious needs of the children are met” while in

foster care would “adequately observe” the Free Exercise rights

of the children and their parents is not necessarily an

endorsement of the converse proposition, i.e., that a state’s

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failure to use such efforts would violate the Free Exercise

rights of the children, let alone their parents. Indeed, the

court expressly rejected the view that parents who temporarily

lose custody of their children to the foster care system

“nonetheless retain the constitutional right to insist that their

children receive state-sponsored parenting under the religious

auspices preferred by the parents.” Furthermore, the court did

not identify any authority, or even provide any reasoned

argument, to support a conclusion that the Establishment Clause

conveys upon parents a “right” to the state’s “reasonable

efforts” toward accommodating their religious preferences when

placing their children in foster care (to the contrary, the court

distinguished Pierce, one of the leading Supreme Court cases

limiting state power to provide for the welfare of children over

parents’ religious objections).

This is all unsurprising, because the court in Wilder was

not squarely confronted with a claim--like the one remaining in

this case--by a parent that a state had violated his right to

free exercise by failing to make reasonable efforts at

accommodating his religious preferences when placing his child in

foster care. Instead, the court was presented with, and

rejected, an argument that a state program’s “tendency to reduce

the frequency of in-religion placements” of foster children could

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violate the Free Exercise rights of their parents, ruling, again,

that those rights did not include “state-sponsored parenting

under the religious auspices preferred by the parents.” In this

context, it is exceedingly difficult to take the court’s

observation that the settlement “adequately observed” the

parents’ Free Exercise rights through its “reasonable efforts to

assure that the religious needs of the children are met” as a

holding that, absent its provisions for such efforts, the

settlement would have violated those rights. It is even more

difficult to derive the proposition that the Free Exercise clause

requires the state to expend such efforts every time it places a

child with a foster family.

The long and short of it is that, whatever the proper

interpretation of Wilder, neither it nor the handful of court

cases purporting to apply it serve to give the defendants here

“fair warning that their conduct violated [BK’s] constitutional

rights.” Jennings v. Jones, 499 F.3d 2, 16 (1st Cir. 2007)

(quotation marks omitted). These cases neither “ruled that

materially similar conduct was unconstitutional” nor set forth “a

general constitutional rule” that “applies with obvious clarity

to the specific conduct at issue” in this case. Id. (quotation

marks and bracketing omitted).

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To the contrary, with one exception, every reported case

identified by the parties, or located by the court, as applying

the “reasonable efforts” test has ruled that the defendant child

welfare officials met it and, as a result, no violation of the

parents’ (or children’s) free exercise rights occurred. See

Wilder, 848 F.2d at 1346-47; Pfoltzer, 1992 WL 137512, at *6;

Starkey, 2007 WL 4522702, at *12; Walker, 891 F. Supp. at 1049;

but see Bruker, 92 F. Supp. 2d at 267-68 (denying motion to

dismiss mother’s Free Exercise claim arising out of child welfare

officials’ lack of “effort to place [the child] in a Jewish

home,” despite a state court order). Furthermore, authorities 4

In a subsequent opinion denying the defendants’ motion for 4

summary judgment on this claim, the court in Bruker, after

discussing Wilder, Pflotzer, and Walker, announced that the

“reasonable efforts” that the Free Exercise clause requires of

child welfare officials include “placing a child with a family of

the same religion where doing so is practicable and in the

child’s best interest and ensuring that the foster family is

instructed regrading the child’s religious needs” as well as

“some measure of supervision of the foster family’s success in

enabling the child’s religious practices, particularly if an inreligion placement is not possible.” Bruker v. City of N.Y., 337

F. Supp. 2d 539, 551 (S.D.N.Y. 2004). This court cannot accept

the view that the Free Exercise clause imposes this highly

specific--and potentially quite onerous--set of requirements on

state child welfare officials, and, again, Wilder expressly

disclaims such a strict reading. In any event, a single decision

from another district court does not provide the “fair warning”

of clearly established law necessary to overcome the defendants’

qualified immunity defense. See Lynch v. City of Boston, 180

F.3d 1, 14 (1st Cir. 1999) (ruling that a single decision by

another court, applying precedent from outside this circuit, “is

plainly insufficient” to overcome qualified immunity); cf. al17

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have recognized that, given the fact-specific nature of the

“reasonable efforts” inquiry, “these cases do not provide a great

deal of concrete guidance” in resolving Free Exercise claims

arising out of foster care placements. Bruker, 337 F. Supp. 2d

at 551; see also Kelsi Brown Corcoran, Free Exercise in Foster

Care: Defining the Scope of Religious Rights for Foster Children

and Their Families, 72 U. Chi. L. Rev. 325, 353 (2005) (noting

that, under the reasonable efforts test, “many gray areas exist

between reasonableness and unreasonableness”).

The Supreme Court recently instructed that, to overcome

qualified immunity, “existing precedent must have placed the

. . . constitutional question beyond debate.” al-Kidd, 131 S.

Ct. at 2083. For the reasons just discussed, Wilder and its

progeny hardly establish beyond debate that the Free Exercise

clause bestows on parents the right to reasonable efforts towards

accommodating their religious preferences when the state places

their children in foster care. So, whether or not the 5

Kidd, 131 S. Ct. at 2083-84 (holding that, “absent controlling

authority[,] a robust consensus of cases of persuasive authority”

is necessary to overcome qualified immunity). 

Indeed, SK states in her objection to the summary judgment 5

motion that, as to parents’ rights to control their childrens’

religious upbringing, “there is disagreement as to the extent of

the limitations, if any, placed on those rights when the children

are placed in foster care” (emphasis added).

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defendants’ complained-of actions here amounted to reasonable

efforts at such an accommodation, the defendants are entitled to

qualified immunity from BK’s claims against them for money

damages under § 1983 (which, as already discussed, are the only

claims remaining in the case).

As a result, the defendants’ motion for summary judgment

(document no. 84) is GRANTED as to BK’s claims, and DENIED as

moot as to the § 1983 claims against the individual defendants by

SK (on her own behalf, as well as on behalf of the children)

since those claims have been dismissed without prejudice. All

other pending motions are DENIED as moot, and the upcoming final

pretrial conference and trial are CANCELLED. The clerk of court

shall enter judgment accordingly and close the case.

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: November 14, 2012

cc: B.K., pro se

Jeanne P. Herrick, Esq.

Nancy J. Smith, Esq.

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