1In an addendum to the complaint filed March 23, 2009

(document no. 4), it appears that Fischer seeks to add claims to

this action against the Belknap County Superior Court. I will

accept the addendum as part of the complaint and will consider

plaintiff to have named the Belknap County Superior Court as a

defendant. 

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Madalyn Fischer

v. Civil No. 09-cv-090-JL

New Hampshire Department of

Health and Human Services1

REPORT AND RECOMMENDATION

Madalyn Fischer has filed this action, pursuant to 42 U.S.C.

§ 1983, as a pro se and in forma pauperis plaintiff. See 28

U.S.C. § 1915(a). Accordingly, the matter is before me for

preliminary review to determine, among other things, whether or

not the complaint states any claim upon which relief might be

granted. See 28 U.S.C. § 1915(e); United States District Court

District of New Hampshire Local Rules (“LR”) 4.3(d)(1)(B). 

Standard of Review

Under this Court’s local rules, when a plaintiff commences

an action pro se and in forma pauperis, the Magistrate Judge

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conducts a preliminary review. LR 4.3(d)(1)(B). In conducting a

preliminary review, the Court construes pro se pleadings

liberally, however inartfully pleaded. See Erickson v. Pardus,

551 U.S. 89, 94 (2007) (per curiam) (following Estelle v. Gamble,

429 U.S. 97, 106 (1976), 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.” Ahmed v. Rosenblatt,

118 F.3d 886, 890 (1st Cir. 1997); see also Castro v. United

States, 540 U.S. 375, 381 (2003) (courts may construe pro se

pleadings to avoid inappropriately stringent rules and

unnecessary dismissals). The court must accept as true both the

plaintiff’s factual assertions, see Erickson, 551 U.S. at 94, and

any inferences that may be reasonably drawn therefrom. See

Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d

1, 5-6 (1st Cir. 2005); Ayala Serrano v. Lebron Gonzalez, 909

F.2d 8, 15 (1st Cir. 1990). This review ensures that pro se

pleadings are given fair and meaningful consideration. 

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Background

The complaint filed in this matter is vague and fails to

follow a linear narrative. Construing the facts as generously as

possible in plaintiff’s favor, however, I find that she has

alleged the following in support of her claim for relief. 

Fischer alleges that her daughter, Kelly Barton Firman,

sought to obtain guardianship over Fischer in the Belknap County

Superior Court (“BCSC”). Fischer asserts, without explanation,

that these efforts were made under the auspices of the New

Hampshire Department of Health and Human Services (“NH-DHHS”). 

Fischer claims she was never provided with notice of the

guardianship proceedings in the BCSC. 

Fischer states generally that the guardianship hearings,

held without notice, violated her civil rights. Fischer states

that at some point in the past, she had a stroke, and during the

time of her resultant incapacitation, her daughter appropriately

obtained guardianship of her. Fischer says that she is recovered

now and able to live independently and take care of all of her

needs, including paying her own bills, walking to the doctor’s

office, and taking a cab to do her own food shopping. Fischer

believes that Firman is seeking control of Fischer’s affairs in

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order to prevent Fischer from cutting her off financially, as

Firman regularly relies on Fischer for financial and other

assistance.

Included with Fischer’s claims are references to the

proceeds of Fischer’s mother’s life insurance policy, to which

Fischer believes she is entitled, but the proceeds of which she

has not received. Fischer also claims that she is due to receive

a lump sum social security payment. Fischer’s claims here

indicate that Firman may be seeking access to the insurance and

social security money by improperly instituting guardianship

proceedings, and that Firman is being assisted in her efforts by

NH-DHHS. Further, Fischer claims that the BCSC is denying

Fischer access to the insurance money by holding guardianship

hearings without notifying Fischer of the hearings.

Discussion

I. Fourteenth Amendment Claim Under 42 U.S.C. § 1983

The complaint does not make clear the precise nature of the

claims Fischer intends to raise. Construed generously, however,

I find that she is attempting to raise claims against the NH-DHHS

and the BCSC, alleging that she is being deprived of her 

Case 1:09-cv-00090-JL Document 7 Filed 07/23/09 Page 4 of 7
2The claims, as identified herein, will be considered to be

the claims raised in the complaint for all purposes. If Fischer

objects to this identification of the claims raised, she must do

so by proper objection to this Report and Recommendation or by

properly moving to amend her complaint.

342 U.S.C. § 1983 provides that:

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 . . . .

5

Fourteenth Amendment due process rights in the guardianship

proceedings initiated by her Firman.2

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal constitutional

or statutory law. See 42 U.S.C. § 1983;3 Parratt v. Taylor, 451

U.S. 527, 535 (1981) (overruled on other grounds by Daniels v.

Williams, 474 U.S. 327, 330-331 (1986)); Wilson v. Town of

Mendon, 294 F.3d 1, 6 (1st Cir. 2002). In order for a defendant

to be held liable under § 1983, his or her conduct must have

caused the alleged constitutional or statutory deprivation. See

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978); Soto v.

Flores, 103 F.3d 1056, 1061-62 (1st Cir. 1997). Because Fischer

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alleges a violation of federal constitutional law by state

defendants, her suit arises under § 1983.

II. State Defendants

The Supreme Court has held that “[I]n the absence of consent

a suit in which the State or one of its agencies or departments

is named as the defendant is proscribed by the Eleventh

Amendment.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.

89, 100 (1984); see P.R. Aqueduct & Sewer Auth. v. Metcalf &

Eddy, Inc., 506 U.S. 139, 146 (1993) (Eleventh Amendment bars all

suits in federal court against states or their agencies); DiazFonseca v. Puerto Rico, 451 F.3d 13, 33 (1st Cir. 2006). This

bar exists whether the relief sought is equitable or legal. See

Pennhurst, 465 U.S. at 100-01; Diaz-Fonseca, 451 F.3d at 33. New

Hampshire has not waived its Eleventh Amendment immunity for

actions brought pursuant to 42 U.S.C. § 1983. 

Fischer has named NH-DHHS and the BCSC, both state agencies,

as defendants to this action. I find that the Eleventh Amendment

bars this suit. As all of the named defendants are immune from

this suit, I recommend that the action be dismissed in its

entirety.

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Conclusion

For the foregoing reasons, I recommend that this action be

dismissed. 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: July 23, 2009

cc: Madalyn Fischer, pro se

JM:jba

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