Wilson v. Brock

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).

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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

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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.

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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

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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.”

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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

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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.

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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.

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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

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