Wilson v . Brock CV-01-284-JD 07/18/02
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Gary D. Wilson
v. Civil N o . 01-284-JD
Opinion No. 2002 DNH 137
David Brock, et a l .
O R D E R
The plaintiff, Gary D. Wilson, proceeding pro s e , brings
civil rights and state law claims against his former wife, state
and federal officials, agencies, a town, and individuals, arising
from his dissatisfaction with actions taken with respect to child
visitation and custody and his child support obligations. The
federal defendants, the State of New Hampshire defendants, the
town of Derry and Rockingham County defendants, David Sandberg,
and Julie Pierce move to dismiss the claims brought against them.
The federal defendants also move, in the alternative, for summary
judgment. Wilson has filed objections to the motions, except for
Sandberg’s motion.
As a preliminary matter, the court notes that Wilson has
listed himself as a plaintiff both on his own behalf and as next
friend of his daughter, Jennifer Wilson. “The federal courts
have consistently rejected attempts at third-party lay
representation.” Herrera-Venegas v . Sanchez-Rivera, 681 F.2d 4 1 ,
42 (1st Cir. 1982). Under Local Rule 83.6(b), a person who is
not a member of the bar of this court cannot appear on behalf of
a pro se party, and that includes a relative. Gary Wilson may
appear on behalf of himself in this action, but he cannot appear
pro se as “next friend” on behalf of his daughter, Jennifer
Wilson. Therefore, Gary Wilson as “next friend” of Jennifer
Wilson is not a party in this case, and all claims brought on
behalf of Jennifer Wilson are dismissed.
Discussion
Because the defendants’ motions raise different issues and
pertain to different facts, each motion will be addressed
separately.
A. David Sandberg’s Motion
David Sandberg served as the guardian ad litem for issues
pertaining to the custody of Jennifer Wilson during Gary and
Julie (now Julie Pierce) Wilson’s divorce proceeding. Wilson
alleges that the parties entered a custody agreement in 1990,
which was vacated the following year, and then agreed to a second
custody arrangement in 1992, which was approved by the court.
Wilson’s claim against Sandberg, “Malfeasance of Duty and Bias,”
alleges, in essence, that Sandberg did not act in Jennifer’s best
interests, and that as a result, Jennifer was, among other
things, deprived of a stable home and parenting by her father.
2
Sandberg moves to dismiss the claims on the grounds that the
allegations fail to state a claim and that he is immune from
liability based on actions taken in his role as guardian ad
litem. All of Wilson’s claims against Sandberg are brought on
behalf of Jennifer. As is discussed above, Wilson, who is
proceeding pro s e , cannot bring claims on behalf of his daughter.
Therefore, even if the claims were viable, they cannot be
litigated in this case. The claims against Sandberg are
dismissed.
B. Federal Defendants’ Motion
The federal defendants are Donna Shalala and the United
States Department of Health and Human Services (“HHS”). Wilson
titles his claim against HHS and Shalala as “Propaganda/Mass
Hysteria.” Wilson alleges that Shalala and her predecessors at
HHS exaggerated the amount of child support owed by obligor
parents and suppressed information that did not support the
hysteria about nonpayment. He alleges that those actions caused
a “McCarthyism” atmosphere which lead to a process rife with
constitutional violations and to the violation of Wilson’s rights
to due process and equal protection. He seeks a declaratory
judgment that Shalala and her predecessors at HHS contributed to
the violation of his constitutional rights.
The federal defendants move to dismiss the claim due to
3
improper service of process. They also move to dismiss on the
grounds that Wilson has not stated a claim under the Federal Tort
Claims Act (“FTCA”), the claim is barred by the FTCA, no claim is
stated under a Bivens theory, and Shalala is entitled to immunity
from a Bivens claim.1
A defendant may move to dismiss an action for insufficiency
of service of process. See Fed. R. Civ. P. 12(b)(4) & ( 5 ) .
Federal Rule of Civil Procedure 4(i) provides the procedure for
serving the agencies, officers, and employees of the United
States. Wilson delivered copies of the complaint and the court’s
preliminary order to the office of the United States Attorney for
the District of New Hampshire, but he did not include summonses
as required by Rule 4(i)(1)(A). Wilson also did not send a copy
of the summons and the complaint to the Attorney General. See
Fed. R. Civ. P. 4(i)(1)(B). In addition, he failed to properly
serve Donna Shalala. Rule 4 ( i ) , however, requires the court to
allow a reasonable time to cure a failure to effect proper
service. See Fed. R. Civ. P. 4(i)(3). Therefore, the court will
consider the other grounds raised by the federal defendants in
support of their motion to dismiss.
“Under the Federal Tort Claims Act, the United States waives
its sovereign immunity for ‘injury or loss of property . . .
1
Bivens v . Six Unknown Fed. Narcotics Agents, 403 U.S. 388
(1971).
4
caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his
office or employment, under circumstances where the United
States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission
occurred.’” Abreu-Guzman v . Ford, 241 F.3d 6 9 , 75 (1st Cir.
2001) (quoting
28 U.S.C. § 1346(b)). The FTCA does not waive
sovereign immunity as to intentional torts, except for assault,
battery, false imprisonment, false arrest, abuse of process, or
malicious prosecution. See
id. In addition, the FTCA requires
an administrative process as a prerequisite to suit. See Roman
v . Townsend,
224 F.3d 2 4 , 27 (1st Cir. 2000); Dynamic Image
Techs., Inc. v . United States,
221 F.3d 3 4 , 39 (1st Cir. 2000).
Wilson’s claim against HHS and Shalala alleges intentional
actions of disseminating false and misleading information and
suppressing other information. As such, the claim is not covered
by the FTCA. More importantly, however, Wilson has not complied
with the administrative requirements of the FTCA. Therefore, the
FTCA does not provide a cause of action.
Alternatively, under a Bivens theory, a plaintiff may seek
money damages from government officials who violate their federal
constitutional rights. See Wilson v . Layne, 526 U.S. 603, 609
(1999). Federal agencies, however, such as HHS may not be sued
under a Bivens theory. See Corr. Servs. Corp. v . Malesko, 122 S .
5
C t . 515, 520-21 (2001) (discussing FDIC v . Meyer, 510 U.S. 471,
484-86 (1994)). Shalala, in her individual capacity, is entitled
to qualified immunity if the right alleged by Wilson was not
clearly established at the time of the alleged violation. See,
e.g., Wilson,
526 U.S. at 609.
As part of the qualified immunity analysis, the court must
first decide whether the plaintiff has alleged “the deprivation
of an actual constitutional right at all.” Id. Wilson’s
allegations that Shalala created hysteria about unpaid child
support through misinformation and propaganda which contributed
to cause due process violations by others in the context of his
child support obligations does not state a constitutional
violation. Even if there were such a violation, however, it was
not clearly established, and Shalala is entitled to qualified
immunity.
Since Wilson seeks a declaratory judgment, rather than money
damages, a question arises as to whether the court would have
subject matter jurisdiction to consider the claim under the
Declaratory Judgment Act. See 28 U.S.C. § 2201. First, Wilson’s
claim does not state a sufficient case or controversy to invoke
the subject matter jurisdiction of the court under the
Declaratory Judgment Act. See 2201(a); see also Sallen v .
Corinthians Licenciamentos LTDA,
273 F.3d 1 4 , 22 (1st Cir. 2001).
In addition, even if a case or controversy could be found in
6
Wilson’s claim, the court declines to exercise jurisdiction in
this case due to the amorphous and attenuated nature of the
claim. See Hartford Fire Ins. Co. v . R.I. Public Transit Auth.,
233 F.3d 1 2 7 , 130 (1st Cir. 2000).
Therefore, Wilson’s claim against the federal defendants is
dismissed for failure to state a claim under either the FTCA or a
Bivens theory and for lack of subject matter jurisdiction under
the Declaratory Judgment Act.
C. The State Defendants
As alleged in the complaint, the state defendants are the
State of New Hampshire Office of Child Support Enforcement
(“OCSE”); David Brock, Chief Justice of the New Hampshire Supreme
Court; Douglas R. Gray and Richard E . Galway, justices of the New
Hampshire Superior Court; Edmond Duschene, a hearings officer at
the New Hampshire Division of Health and Human Services; Ruth
Eisman and Linda LaFlamme, child support enforcement officers in
the OCSE, Division of Health and Human Services; Jane Schrich, an
attorney for the OSCE; Raymond W . Taylor, clerk of court,
Rockingham County Superior Court; and Donald Shumway and Terry L.
Morton, former commissioners of the New Hampshire Division of
Health and Human Services. Wilson’s claims arise from the
enforcement actions by the OCSE and related state court
proceedings.
7
The state defendants move to dismiss the action, pursuant to
Rules 12(b)(4) and ( 5 ) , for insufficient process and insufficient
service of process. The state defendants also note that Terry L.
Morton no longer works at the New Hampshire Division of Health
and Human Services so that the papers Wilson left there did not
reach Morton. Wilson does not contest the deficiencies in the
process or service, but asks the court “to exercise it’s [sic]
discretion regarding this matter.” Memorandum at 3 .
Contrary to Wilson’s belief, the court lacks discretion to
ignore deficiencies in process or service. See Fed. R. Civ. P.
4(m). When proper service is not made within the time allowed,
instead of dismissing the complaint the court may require that
proper service be made within a specified time. See id.
Therefore, the court will consider the other grounds raised by
the state defendants.
The state defendants also move to dismiss Wilson’s claims as
barred by the Rooker-Feldman doctrine.2 Under the Rooker-Feldman
doctrine, lower federal courts lack jurisdiction to review state
court judgments or to consider claims “that are ‘inextricably
intertwined’ with the claims adjudicated in state court.” Picard
v . Members of Employee Ret. Bd., 275 F.3d 139, 145 (1st Cir.
2
See District of Columbia Court of Appeals v . Feldman, 460
U.S. 462 (1983); Rooker v . Fidelity Trust Co.,
263 U.S. 413
(1923).
8
2001); see also In re Middlesex Power Equip., 292 F.3d 6 1 , 66 n.1
(1st Cir. 2002). “The doctrine has no application to judicial
review of executive action, including determinations made by a
state administrative agency.” Verizon Md., Inc. v . P.S.C., 122
S . C t . 1753, 1759 n.3 (2002).
In each of his claims, Wilson “incorporates by reference”
his divorce case, Wilson v . Wilson, 89-M-142, Rockingham County
Superior Court, and his child support case, which he identifies
as “N.H. O.C.S.E. 0050506C.” In some of the claims involving the
state defendants, he also incorporates his petition to the New
Hampshire Supreme Court, which he identifies as “Petition of Gary
D. Wilson (99-256 New Hampshire Supreme Court) and as a “Writ of
Certiorari . . . regarding outcome of administrative appeal,”
and another proceeding he identifies as “99-JT-00266, 00267,
State of New Hampshire v . Gary D. Wilson.”
1. Claims against the judges and court clerk.
Wilson’s claims against Superior Court justices Gray and
Galway challenge their decisions in court proceedings relating to
custody and child support arrangements. This court lacks subject
matter jurisdiction, as analyzed under the Rooker-Feldman
doctrine, to consider those claims.
Wilson also seeks a declaratory judgment that Raymond
Taylor, clerk of the Rockingham County Superior Court, violated
9
Wilson’s right to due process when he notified him of a bail
hearing which Wilson claims was actually a show cause hearing.
He also alleges that Judge Galway would not permit him to object
to proper notice during the hearing. As such, Wilson’s claim
challenges the validity of the state court proceeding on due
process grounds. In essence, Wilson appeals the state court
judgment which is barred by the Rooker-Feldman doctrine. In
addition, the judges and Taylor are protected from the claims
against them by judicial immunity.3 See Pierson v . Ray, 386 U.S.
547, 553-54 (1967); Slotnick v . Garfinkle,
632 F.2d 163, 166 (1st
Cir. 1980).
Wilson’s claim against Chief Justice Brock is less clear.
To the extent he challenges the New Hampshire Supreme Court’s
discretionary decision to decline his appeal to review the OCSE’s
administrative decisions, such a claim fails because a litigant
has no constitutional right to an appeal. See Lindsey v . Normet,
405 U.S. 5 6 , 77 (1972). To the extent Wilson seeks a declaratory
judgment that Chief Justice Brock is responsible for an
unconstitutional relationship between the courts and the OCSE,
the court declines to exercise subject matter jurisdiction under
§ 2201 as to such a claim.
3
Wilson also seeks a declaratory judgment that Taylor
allowed his duties as clerk to be performed by the OCSE,
constituting “malfeasance of office.”
10
2. Claims against the other state defendants.
The claims against the other state defendants appear to be
based on complaints about the administrative process and
decisions in OCSE proceedings. Those claims are not barred by
the Rooker-Feldman doctrine. See Verizon, 122 S . C t . at 1759
n.3. Alternatively, the state defendants contend that LaFlamme,
Schrich, and Eisman are entitled to absolute immunity as
prosecutors in the OCSE proceedings. They also argue that claims
against the state and individuals sued in their official
capacities are barred by the Eleventh Amendment.
The Supreme Court recognizes absolute immunity to protect
“the prosecutor when serving as an advocate in judicial
proceedings.” Kalina v . Fletcher, 522 U.S. 118, 125 (1997). In
appropriate circumstances, prosecutorial immunity extends to
agency officials performing prosecutorial functions. See Butz v .
Economou,
438 U.S. 478, 515 (1978). State officials and agency
employees have been held to be absolutely immune for actions
taken within a prosecutorial function in child welfare and
support proceedings. See, e.g., Babcock v . Tyler,
884 F.2d 497,
501-03 (9th Cir. 1989); Malachowski v . City of Keene,
787 F.2d
704, 710 (1st Cir. 1986); Wagner v . Genesee County Bd. of
Comm’rs,
607 F. Supp. 1158, 1164 (E.D. Mich. 1985). Immunity is
available, however, only when the prosecutor is performing
functions that require prosecutorial discretion and does not
11
extend to functions that are merely administrative or
investigative. See Guzman-Rivera v . Rivera-Cruz, 55 F.3d 2 6 , 29
(1st Cir. 1995).
Wilson’s allegations against Eisman, Schrich, and LaFlamme
do not clearly identify their functions in the OCSE process.
His allegations appear to include prosecutorial functions along
with investigative and administrative activities. Eisman,
Schrich, and LaFlamme move generally to dismiss the claims
against them based on absolute prosecutorial immunity but do not
address the specific allegations against them. The court will
not parse through the allegations to determine which may
implicate prosecutorial immunity. See, e.g., Williams v . Drake,
146 F.3d 4 4 , 50 (1st Cir. 1998).
The state defendants argue that the State of New Hampshire
and the state officials sued in their official capacities are
entitled to immunity under the Eleventh Amendment and that Wilson
has not alleged any basis for prospective declaratory relief.
“As a general matter the several states are immune under the
Eleventh Amendment from private suit in the federal courts,
absent their consent.” Greenless v . Almond, 277 F.3d 601, 606
(1st Cir. 2002). An exception is the doctrine of Ex parte Young,
209 U.S. 123 (1908), which permits suit against a state official
to obtain a declaratory judgment for prospective relief to
enforce a federal right. Id. at 606-07. Suits against state
12
employees in their official capacities are suits against the
state. See Negron Gaztambide v . Hernandez Torres, 145 F.3d 410,
416 (1st Cir. 1998).
Wilson sues the state defendants in their individual and
official capacities. All but one of Wilson’s claims against the
state defendants seek a declaratory judgment to remedy past
violations. As such, those claims are dismissed as to the State
of New Hampshire, OCSE, and the individual defendants sued in
their official capacities. In addition, to the extent Wilson
seeks damages from the State of New Hampshire, OCSE, or the state
defendants in their official capacities, those claims are
dismissed.
In Count XIII, Wilson seeks a declaratory judgment that “the
cooperative agreement between the OCSE and the New Hampshire
Judiciary and the duties of the court performed by OCSE do
constitute violation of the Separation of Powers doctrine and are
therefore unconstitutional.” Without regard to the merits of
such a claim, Wilson does appear to seek prospective relief in
Count XIII, which is not barred by the Eleventh Amendment.
Wilson shall make proper service of the complaint on each of
the remaining state defendants or request a waiver from each
defendant, on or before August 2 , 2002. See Fed. R. Civ. P.
4(d),(l), & ( m ) . Failure to make proper service or to request
waiver within the time allowed will result in dismissal of the
claims against the state defendants.
13
D. The Town and County Defendants
Wilson brings claims against the town of Derry, New
Hampshire; Jon Twiss and Keith Moreau, detectives in the Derry
Police Department; Brenda Blonigen, a sergeant in the Rockingham
County Sheriff’s Department; and Gene Charron, Superintendent,
Rockingham County House of Corrections pursuant to 42 U.S.C. §
1983. The town and county defendants move to dismiss the claims
against them pursuant to Rules 12(b)(4) and ( 5 ) , for improper
service of process, but they offer to waive service if a formal
request is made pursuant to Rule 4 ( d ) . They also move to dismiss
the claims on the merits pursuant to Federal Rule of Civil
Procedure 12(b)(6).
When considering a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6), the court takes all well-pled
facts in the complaint as true and draws all reasonable
inferences in the plaintiff’s favor. See Tompkins v . United
Healthcare of New England, Inc., 203 F.3d 9 0 , 93 (1st Cir. 2000).
The court “must carefully balance the rule of simplified civil
pleadings against our need for more than conclusory allegations.”
Aybar v . Crispin-Reyes,
118 F.3d 1 0 , 13 (1st Cir. 1997)
(quotation omitted). A claim will be dismissed “only if it
clearly appears, according to the facts alleged, that the
plaintiff cannot recover on any viable theory.” Langadinos v .
Am. Airlines, Inc.,
199 F.3d 6 8 , 69 (1st Cir. 2000). A complaint
filed by a pro se litigant is held to less stringent standards
14
than one drafted by a lawyer. See Haines v . Kerner, 404 U.S.
519, 520 (1972).
1 . Claims against Derry and the officers in their official
capacities.
In Count III, Wilson alleges that officers Twiss and Moreau
conducted an illegal search of his home “without a warrant or
other legal privilege.” He seeks a declaratory judgment “that
the actions of Moreau and Twiss, and the Town of Derry on or
about July 2 9 , 1998, constituted illegal search and violation of
privacy of plaintiff,” and $75,000 in damages. Derry moves to
dismiss the claim against i t , and the claims against Twiss and
Moreau in their official capacities, on the ground that Wilson
has not alleged a basis for a civil rights claim against the
town.4
A town may be liable under § 1983 for its own acts, but it
is not liable, based on a vicarious liability theory, for the
acts of its employees. See Bd. of the County Comm’rs v . Brown,
520 U.S. 397 403 (1997). A town is liable only “when execution
of a government’s policy or custom . . . inflicts the injury.”
Monell v . Dep’t of Social Servs.,
436 U.S. 658, 694 (1978). A
single incident, not involving a municipal policymaker, is
generally not sufficient to show a municipal custom or policy.
4
A claim brought against a town official or employee in his
official capacity is a claim against the town itself. See Negron
Gaztambide, 145 F.3d at 416.
15
See Mahan v . Plymouth County House of Corrections, 64 F.3d 1 4 ,
16-17 (1st Cir. 1995).
Despite Wilson’s request for a declaratory judgment that the
“actions” of the town on July 2 9 , 1998, violated his rights, he
alleges no actions by the town. Wilson alleges no town custom,
policy, or practice that caused Moreau and Twiss to allegedly
violate his rights. The town cannot be held vicariously liable
for the actions of Twiss and Moreau. Nothing in the complaint
suggests that they are policymakers for the police department,
and the single incident on July 2 9 , 1998, is insufficient to
allege a practice, custom, or policy of the town. Therefore, the
claims against the Town of Derry and against Officers Twiss and
Moreau in their official capacities is dismissed.
Twiss and Moreau also move to dismiss the claims against
them in their individual capacities. They argue that no Fourth
Amendment violation occurred because “the complaint seemingly
concedes that Plaintiff’s mother consented to the search.” In
contrast, the complaint states that Twiss and Moreau searched
“without a warrant or other legal privilege,” which, taken as
true, means that no consent was given. See Tompkins v . United
Healthcare of New England, Inc., 203 F.3d 9 0 , 93 (1st Cir. 2000)
(providing standard of review for motion to dismiss). Twiss and
Moreau do not address Wilson’s privacy claim under the Ninth
Amendment.
16
2 . Claims against Superintendent Charron and Sargeant
Blonigen.
In Count X , Wilson alleges that while he was incarcerated in
the Rockingham County House of Corrections, he asked a
corrections officer, identified as “Bobby,” for a piece of paper
and a writing utensil in order to file a court motion, which was
denied, and that his request was also denied by a second officer.
He states that the officers acted under the direction of
Superintendent Charron. In Count X I , Wilson alleges that he
submitted a request to the jail staff for “basic legal materials”
to prepare a defense for his October 4 , 2000, bail hearing. He
states that he did not receive a response until after the hearing
and then he was told to seek the materials elsewhere. In both
counts, he seeks declaratory judgments that his rights to due
process and access to the courts, among others, were violated.
Superintendent Charron contends that Wilson’s claims are
deficient because they do not include allegations of direct
conduct by Charron or of a custom, practice, or policy. Charron,
who is represented by counsel, cites no authority in support of
his argument. C f . Wilson v . Town of Mendon, 2002 WL 1290415, at
*3 (1st Cir. June 1 7 , 2002) (discussing elements of supervisory
liability); Figueroa-Torres v . Toledo-Davila,
232 F.3d 270, 279
(1st Cir. 2000) (same). As such, Charron’s argument for
dismissing the claims against him is not sufficiently developed
to permit review. See Higgins v . New Balance Athletic Shoe,
17
Inc., 194 F.3d 252, 260 (1st Cir. 1999).
Sergeant Blonigen moves to dismiss the claims against her on
the ground that the allegations that her actions were
“‘intentional and illegal’ directly counters [Wilson’s] attempts
to pursue the officer on an official capacity claim.” Blonigen’s
argument is unclear, and she cites no authority to support or
clarify the argument. The court will not address an argument
that is insufficiently developed to permit review. See id.
Twiss, Moreau, Charron, and Blonigen note that Wilson seeks
declaratory judgments against them. They state, again without
citation to authority, that Wilson “may not maintain such prayers
and requested relief under the auspices of 42 USC § 1983 [sic]
and pendent claims.” Again, they cite no authority, and the
court will not address an argument that is not sufficiently
developed. See
id.
E. Julie Pierce
Wilson alleges claims of breach of contract, fraud, abuse of
judicial process, and parental alienation against his former
wife, Julie Pierce, in Count I of the complaint. Although he
includes allegations that involve Pierce in other parts of the
complaint, his only claims against Pierce appear to be in Count
I. In response, Pierce, who is also proceeding pro s e , filed a
pleading titled “Answer and Motion to Dismiss.” Under the Local
18
Rules of this court, motions must be filed separately from other
filings. See LR 7.1(a)(1). Therefore, Pierce’s filing will be
considered as her answer only.5
Pierce’s motion to dismiss is denied without prejudice to
file an appropriate motion for judgment on the pleadings pursuant
to Federal Rule of Civil Procedure 12(c) or a motion for summary
judgment pursuant to Federal Rule of Civil Procedure 56(c).
After the defendant has filed an answer “but within such time as
not to delay the trial, [the defendant] may move for judgment on
the pleadings.” Fed. R. Civ. P. 12(c). When considering a
motion for judgment on the pleadings, the “court must accept all
of the nonmoving party’s well-pleaded factual averments as true
and draw all reasonable inferences in her favor.” Feliciano v .
Rhode Island, 160 F.3d 780, 788 (1st Cir. 1998). Judgment on the
pleadings is not appropriate “‘unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of her
claim which would entitle her to relief.’” Santiago de Castro v .
Morales Medina,
943 F.2d 129, 130 (1st Cir. 1991) (quoting
Rivera-Gomez v . de Castro,
843 F.2d 631, 635 (1st Cir. 1988)).
Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
5
Although Wilson objects to a cross-claim in Pierce’s
filing, Pierce’s “Answer and Motion to Dismiss” does not appear
to include a cross-claim.
19
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). The party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See Celotex Corp. v . Catrett, 477 U.S. 317, 323 (1986). All
reasonable inferences and all credibility issues are resolved in
favor of the nonmoving party. See Anderson v . Liberty Lobby,
Inc.,
477 U.S. 2 4 2 , 255 (1986); Barreto-Rivera v . Medina-Vargas,
168 F.3d 4 2 , 45 (1st Cir. 1999). A party opposing a properly
supported motion for summary judgment must present competent
evidence of record that shows a genuine issue for trial. See
Anderson,
477 U.S. at 256; Torres v . E.I. Dupont De Nemours &
Co.,
219 F.3d 1 3 , 18 (1st Cir. 2000).
Conclusion
For the foregoing reasons, the claims brought by Gary D.
Wilson on behalf of Jennifer Wilson are dismissed. The federal
defendants’ motion to dismiss (document no. 32) is granted.
Defendant David Sandberg’s motion to dismiss (document n o . 38) is
granted.
The state defendants’ motion to dismiss (document n o . 22) is
granted as to the State of New Hampshire, the New Hampshire
Office of Child Support Enforcement (except for the declaratory
judgment sought in Count XIII), Chief Justice Brock, Judge
20
Galway, Judge Gray, Raymond Taylor, and the individual defendants
sued in their official capacities. The motion is otherwise
denied, except that the objection to service of process is
addressed separately. The motion to dismiss filed by the Town of
Derry, Officers Twiss and Moreau, Superintendent Charron, and
Sergeant Blonigen (document n o . 15) is granted as to the town and
Officers Twiss and Moreau in their official capacities, and is
otherwise denied, except that the objection to service of process
is addressed separately.
Wilson shall make proper service on Edmond Duschene, Ruth
Eisman, Linda LaFlamme, Terry L. Morton, Jane Schrich, Donald
Shumway, the New Hampshire Office of Child Support Enforcement,
Officers Twiss and Moreau, Superintendent Charron, and Sargeant
Blonigen or request a waiver of service from each in compliance
with Rule 4(d) on or before August 2 , 2002, failing which the
claims against those defendants will be dismissed.
SO ORDERED.
Joseph A . DiClerico, Jr.
United States District Judge
July 1 8 , 2002
cc: Gary D. Wilson, pro se
Andrew B . Livernois, Esquire
John A . Curran, Esquire
Donald E . Gardner, Esquire
Julie A . Pierce
Marc R. Scheer, Esquire
Charles H. Bohl, Esquire
William C . Saturley, Esquire
T . David Plourde, Esquire
21
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