Petition for Writ of Certiorari — Baboucar B. Taal, Petitioner v. St. Mary's Bank, et al.

Case: 17-1228 Document: 00117255039 Page: 1

Date Filed: 02/12/2018

Entry ID: 6150334

United States Court of Appeals

For the First Circuit

No. 17-1228

BABOUCAR B. TAAL,

Plaintiff, Appellant,

V.

ST. MARY'S BANK; RONALD COVEY; GREGORY ULIASZ; GILLIAN ABRAMSON,

Defendants, Appellees.

Before

Howard, Chief Judge,

Torruella and Thompson, Circuit Judges.

JUDGMENT

Entered: February 12, 2018

After carefully reviewing the briefs and record on appeal, we affirm.

We review de novo. See Estate of Bennett v. Wainwright, 548 F.3d 155 3 162 (1St Cir. 2008).

Appellant fails to develop any arguments addressing the dispositive issues and waives

review. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). He develops no argument

that the district court erred in dismissing claims against the state court judge on the ground of

absolute judicial immunity, or in dismissing claims against the remaining appellees due to Younger

abstention. See Sirva Relocation, LLC v. Richie, 794 F.3d 185 (1st Cir. 2015); Cok v. Cosentino,

876 F.2d 1, 2 (1st Cir. 1989). His speculations and conclusions do not rise to the level of appellate

argument. Similarly, his conclusory averments below were insufficient to survive dismissal. See

Ashcroft v. IQba1, 556 U. S. 662 (2009).

Appellant's new arguments and claims are not properly before this court. See B & T

Masonry Const. Co. v. Pub. Serv. Mut. Ins. Co., 382 F.3d 36, 40-41 (1st Cir. 2004).

Affirmed. First Cir. Loc. R. 27.0(c).

Case: 17-1228 Document: 00117255039 Page: 2

Date Filed: 02/12/2018

By the Court:

Is! Margaret Carter. Clerk

cc:

Baboucar B. Taal

Gregory T. Uliasz

Nancy J. Smith

Entry ID: 6150334

Case: 17-1228 Document: 00117265651 Page: 1

Date Filed: 03/14/2018

Entry ID: 6156495

United States Court of Appeals

For the First Circuit

No. 17-1228

BABOUCAR B. TAAL,

Plaintiff, Appellant,

V.

ST. MARY'S BANK; RONALD COVEY; GREGORY ULIASZ; GILLIAN ABRAMSON,

Defendants, Appellees.

Before

Howard, Chief Judge,

Torruella, Lynch, Thompson,

Kayatta and Barron, Circuit Judges.

ORDER OF COURT

Entered: March 14, 2018

The petition for rehearing having been denied by the panel of judges who decided the case,

and the petition for rehearing en banc having been submitted to the active judges of this court and

a majority of the judges not having voted that the case be heard en banc, it is ordered that the

petition for rehearing and the petition for rehearing en banc be denied.

By the Court:

Is! Margaret Carter, Clerk

cc:

Baboucar B. Taal

Gregory T. Uliasz

Nancy J. Smith

Case 1:16-cv-00231-LM Document 54 Filed 02/15/17 Page 1 of 1

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Baboucar Taal

Civil No. 16-cv-231-LM

St. Mary's Bank, et al.

JUDGMENT

In accordance with the Order dated February 14, 2017, by District Judge Landya B.

McCafferty, judgment is hereby entered.

By the Court,

Is! Daniel J. Lynch

Daniel J. Lynch

Clerk of Court

Date: February 15, 2017

cc:

Baboucar Taal, pro se

Gregory T. Uliasz, Esq.

Ellen M. Rogers, Esq.

Nancy J. Smith, Esq.

Jay M. Niederman, Esq.

Case 1:16-cv-00231-LM Document 53 Filed 02/14/17 Page 1 of 14

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Baboucar Taal

Civil No. 16--cv-231-LM

Opinion No. 2017 DNH 025

St. Mary's Bank, Ronald

Covey, Gregory Uliasz,

and Gillian Abramson

ORDER

Appearing pro se, Baboucar Taal asserts six claims against

four defendants: St. Mary's Bank ("SMB"); SMB's president,

Ronald Covey; SMB's attorney, Gregory Uliasz; and Judge Gillian

Abramson, who has presided over a case Taal brought in the New

Hampshire Superior Court. Under the aegis of 42 U.S.C. § 1983,

Taal asserts that defendants violated his rights under the

Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution (Counts I and III), and that they conspired to

violate his constitutional rights (Counts II and IV) .'

In his

remaining two claims (Counts V and VI), he asserts that

defendants are liable to him for Racketeer Influenced and

Corrupt Organization ('RICO") violations. See 18 U.S.C. § 1962.

1 While there is a less than perfect correspondence between

the headings of plaintiff's counts and the text that follows

them, the headings of Counts I and II refer to the right to an

impartial tribunal, and the headings of Counts III and IV refer

to the right to counsel.

Case 1:16-cv-00231LM Document 53 Filed 02/14/17 Page 2 of 14

Before the court are two motions to dismiss, one filed by Judge

Abramson, the other filed by SMB, Covey, and Uliasz (hereinafter

"the SMB defendants")

.

For the reasons that follow, those two

motions to dismiss are both granted.

I. Background

The facts recited in this section are drawn largely from

Judge DiClerico's January 20, 2014, order on preliminary review

in Taal v. Uliasz, No. 13-cv-545-JD, a case that Taal brought in

this court several years ago.2

Taal and his wife, Guylaine, once received a loan from SMB

that was secured by a mortgage. They have also received other

loans from SMB, including at least one that was unsecured, and

have had other accounts with SMB. In 2009, SMB received a

judgment against Taal in an action in the Merrimack District

Court to collect an unsecured debt. Thereafter, Taal

surrendered a recreational vehicle to SMB, which the bank was

supposed to sell to satisfy its judgment. Subsequently, Taal

sued SMB in the Hillsborough County Superior Court. In that

action, 11-C-741, Taal claimed, among other things, that SMB had

not disposed of the RV in a commercially reasonable manner.

Judge DiClerico's slip opinion in 13-cv-545-JD may be

found in the docket of this case. See Defs.' Mem. of Law, Ex. E

(doc. no. 24-6)

2

.

2

Case 1:16-cv-00231LM Document 53 Filed 02/14/17 Page 3 of 14

Judge Abramson, a defendant in this case, dismissed 11-C741 on res judicata grounds. And, in her order of dismissal,

she

extended a temporary restraining order and preliminary

against Taal which enjoined Taal from

injunction

contacting [SMB] employees and agents directly, rather

than through counsel, and further enjoined him from

harassing and intimidating certain individuals,

including Uliasz's spouse.

.

.

.

Taal, slip op. at 4. Taal appealed the order of dismissal to

the New Hampshire Supreme Court ("NHSC")

.

The NHSC reversed the

dismissal, and remanded, but it also affirmed Judge Abramson's

extension of the injunction against Taal.

On remand, Taal moved for the recusal of Judge Abramson.

She denied his motion. Then, when Taal failed to appear at a

final trial management conference and failed to file a pretrial

statement, Judge Abramson dismissed 11-C-741 again, in an order

dated April 2, 2013.

Later in 2013, after Taal contacted various SMB employees,

SMB moved for contempt in 11-C-741. This is what happened next:

On October 18, 2013, the superior court found

that Taal had violated the [injunction against

contacting SMB employees], which remained in effect

despite the dismissal of Taal's case, by contacting

Ronald Covey, the CEO of [SMB], and accusing [SMB] of

several violations of the law. The court ordered Taal

to pay [SMB] $1,825 in attorneys' fees incurred in

and in attending

filing the motion for contempt

the hearing. After Taal failed to pay the fees, the

court scheduled a show cause hearing to address Taal's

failure to obey the court order, which [was] scheduled

for January 15, 2014.

.

3

.

.

Case 1:16-cv-00231-LM Document 53 Filed 02/14/17 Page 4 of 14

Taal, slip op. at 6. After that hearing was scheduled, SMB

filed a second motion for contempt.

"On December 20, 2013, apparently in response to [SMB]'s

two motions for contempt, Taal filed [an] action against Uliasz

and the firm for which he works." Taal, slip op. at 7. That

action was Judge DiClerico's case, 13-cv-545-JD. Then:

On December 30, 2013, Uliasz, on behalf of [SMB],

mailed Guylaine [Taal] a notice of mortgage

foreclosure sale, which sale [was] scheduled to occur

on January 31, 2014. On January 3, 2014, Taal filed a

motion for an emergency preliminary injunction [in 13cv-545-JD], seeking to enjoin the foreclosure.

Id.

On preliminary review, Judge DiClerico dismissed Taal's

case, explaining that due to the pendency of Taal's state court

action, i.e., the hearing in 11-0-741 that was scheduled for

January 15, dismissal was required by the Younger abstention

doctrine. See Younger v. Harris, 401 U.S. 37, 43-44 (1971)

And, because he was dismissing Taal's case, Judge DiClerico also

denied Taal's request for an injunction barring the foreclosure

sale. In his complaint, Taal alleges that the foreclosure

ultimately took place.

Returning to Taal's litigation related to 11-0-741, he

appealed the superior court's finding that he was in contempt of

the injunction barring contact with SNB employees. The NHSC

affirmed, and in so doing, rejected Taal's claim that Judge

4

Case 1:16-cv-00231-LM Document 53 Filed 02/14/17 Page 5 of 14

Abramson had erred by declining to recuse herself from 11-C--741.

In April 2016, Taal received notice of a hearing in 11-C741, scheduled for June 13, 2016. The purpose of that hearing

was for Taal to show cause why he should not be held in contempt

for failing to pay SMB the $1,825 that he had been ordered to

pay in October 2013. On June 7, 2016, one week before the show

cause hearing in 11-C-741, Taal filed the verified complaint

that initiated this case. The general thrust of plaintiff's

claims is that he has been the victim of various unlawful acts

perpetrated by all four defendants, including Judge Abramson,

acting in concert. A primary factual focus of plaintiff's

complaint is the foreclosure of his mortgage, but the complaint

also refers to one or more superior court rulings that were made

in the run-up to the June 13, 2016, hearing. See Compi. (doc.

no. 1) 7, 11. In his objections to both of the pending motions

to dismiss, plaintiff makes it clear that in this suit, he

identifies the superior court's order that he pay SNB $1,825 in

attorneys' fees as one incident of defendants' conspiracy

against him. See Pl.'s Nem. of Law (doc. no. 25-1) 11 5, 8, 10;

Pl.'s Obj. (doc. no. 38) 9191 4.iii, 5. As the court has noted,

Taal's failure to comply with that order was the subject of the

June 13 show cause hearing.

6-1

Case 1:16-cv-00231-LM Document 53 Filed 02/14/17 Page 6 of 14

II. Discussion

In this section, the court considers, in turn, each of the

two pending motions to dismiss, beginning with the one filed by

Judge Abramson.

A. Judge Abramson's Motion to Dismiss

In her motion to dismiss, Judge Abramson identifies three

grounds for dismissal: (1) Eleventh Amendment sovereign

immunity; (2) judicial immunity; and (3) failure to state a

claim upon which relief can be granted. Judicial immunity

entitles Judge Abramson to the dismissal of Taal's claims

against her.

Judges have "absolute immunity from civil liability for any

normal and routine judicial act." Cok v. Cosentino, 876 F.2d 1,

2 (1st Cir. 1989) (citing Stump v. Sparkman, 435 U.S. 349, 35657 (1978))

Moreover:

.

This immunity applies no matter how erroneous the act

may have been, how injurious its consequences, how

informal the proceeding, or how malicious the motive.

Cleavinger v. Saxner, 474 U.S. 193, 199-200 (1985)

Only judicial actions taken in the clear absence of

all jurisdiction will deprive a judge of absolute

immunity. Stump, 435 U.S. at 357; Sullivan v.

Kelleher, 405 F.2d 486, 487 (1st Cir. 1968)

Cok, 876 F.2d at 2 (parallel citations omitted); see also

Pierson v. Ray, 386 U.S. 547, 554 (1967) ("[t]his immunity

applies even when the judge is accused of acting maliciously and

corruptly")

.

As the Supreme Court has explained:

n.

Case 1:16-cv-00231LM Document 53 Filed 02/14/17 Page 7 of 14

It is a judge's duty to decide all cases within his

[or her] jurisdiction that are brought before him [or

her], including controversial cases that arouse the

most intense feelings in the litigants. His [or her]

errors may be corrected on appeal, but he [or she]

should not have to fear that unsatisfied litigants may

hound him [or her] with litigation charging malice or

corruption. Imposing such a burden on judges would

contribute not to principled and fearless decisionmaking but to intimidation.

Pierson, 386 U.S. at 554.

Here, even when plaintiff's complaint is construed

liberally, see Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(directing courts to construe pro se pleadings liberally), and

even when the court accepts all of plaintiff's factual

allegations as true and draws all reasonable inferences in his

favor, see Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st

Cir. 2014), there are no facts alleged in Taal's complaint that,

if true, would strip Judge Abramson of judicial immunity. To be

sure, Taal alleges that Judge Abramson engaged in a host of

unlawful acts. And he plainly alleges a corrupt, malicious

motive. But, he alleges no facts showing that Judge Abramson

acted in a clear absence of all jurisdiction, and no facts that

would support a reasonable inference to that effect. Thus,

Judge Abramson is entitled to judicial immunity. That, in turn,

entitles her to the dismissal of Taal's claims against her.

7

Case 1:16-cv-00231-LM Document 53 Filed 02/14/17 Page 8 of 14

B. The SMB Defendants' Motion to Dismiss

In their motion to dismiss, the SMB defendants identify

four grounds for the relief they seek: (1) the Younger

abstention doctrine; (2) the Rooker-Feldman doctrine;3 (3) Rule

12(b) (6) of the Federal Rules of Civil Procedure, i.e., failure

to state a claim upon which relief can be granted; and (4)

expiration of the statute of limitations. Just as Judge

DiClerico relied upon the Younger abstention doctrine to dismiss

13-cv-545-JD, so too does this court rely on that doctrine to

dismiss Taal's claims against the SMB defendants.

Younger abstention is ,a doctrine that can, under some

circumstances, require a federal court to "refrain from

interfering with certain state proceedings." Sirva Relocation

LLC v. Richie, 794 F.3d 185, 189 (1st Cir. 2015) (citing

Younger, 401 U.S. at 43-45)

.

In Sirva, the court of appeals

outlined a "three-step approach to Younger abstention." 794

F.3d at 192. Under that approach, a court must first determine

whether the state court proceeding at issue is the type of

"The Rooker-Feldman doctrine precludes 'the losing party

in state court [from filing] suit in federal court after the

state proceedings [have] ended, complaining of an injury caused

by the state-court judgment and seeking review and rejection of

that judgment.'" Coggeshall v. Mass. Bd. of Reg. of

Psychologists, 604 F.3d 658, 663 (1st Cir. 2010) (quoting Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291

(2005)); see also D.C. Court of Appeals v. Feldman, 460 U.S.

462, 482 (1983); Rooker v. Fid. Tr. Co., 263 U.S. 413, 416

(1923))

-

Case 1:16-cv-00231-LM Document 53 Filed 02/14/17 Page 9 of 14

proceeding that triggers Younger abstention. Regarding that

issue, the Supreme Court has

held that only three types of state proceedings

trigger Younger abstention: (i) criminal prosecutions,

(ii) "civil proceedings that are akin to criminal

prosecutions," and (iii) proceedings "that implicate a

State's interest in enforcing the orders and judgments

of its courts."

Id. (quoting Sprint Cornmc'ns, Inc. v. Jacobs, 134 S. Ct. 584,

588 (2013))

.

If the state proceeding falls within one of the

three categories described above, then the court must take the

next step and determine whether the so-called "Middlesex

factors" support abstention.

explained that a

In Middlesex, the Court

federal court must abstain when there is an ongoing

state proceeding (judicial in nature), which

implicates important state interests and provides an

adequate opportunity to raise federal defenses.

.

.

.

Sirva, 794 F.3d at 192 (citing Middlesex Cty. Ethics Comm. v.

Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)). Moreover,

the Middlesex factors "all must be assessed as of the date when

the federal complaint is filed." Coggeshall v. Mass. Bd. of

Reg. of Psychologists, 604 F.3d 658, 664 (1st Cir. 2010) (citing

Bettencourt v. Bd. of Reg. in Med., 904 F.2d 772, 777 (1st Cir.

1990))

.

Finally, if the first two "steps leave the case on

track for abstention, the court must take the third step and

determine whether any of the

.

.

.

exceptions to the Younger

doctrine apply." Sirva, 794 F.3d at 193.

Case 1:16-cv-00231-LM Document 53 Filed 02/14/17 Page 10 of 14

The question in this case is whether abstention from

reaching the merits of Taal's claims is required by the fact

that when Taal filed this action, the superior court had yet to

rule on the question of whether he was in contempt of court for

failing to comply with its previous order that he pay SMB $1,825

in attorneys' fees. Based upon the analytical framework

described in Sirva, abstention is required.

To begin, the show cause hearing that had yet to take place

when Taal filed this action plainly falls within the Younger

taxonomy. In 13-cv--545-JD, Judge DiClerico ruled that an

upcoming show cause hearing in 11-C--741, that the state court

had scheduled to address Taal's failure to pay SMB $1,825 in

attorneys' fees, was a state judicial proceeding for the purpose

of Younger abstention. Moving ahead in time, the subject of the

hearing in 11-C-741 that was scheduled for one week after Taal

filed this suit was also Taal's failure to pay SMB the $1,825 in

attorneys' fees that he had been ordered to pay. If the pending

hearing in 13-cv-545-JD was a state court judicial proceeding

for the purposes of Younger abstention, then the pending hearing

in this case must also satisfy the first step of the Sirva

approach. Indeed, it seems self-evident that a hearing at which

Taal was to show cause why he should not be held in contempt for

disobeying a court order implicated the State of New Hampshire's

interest in enforcing the orders of its courts. See Sirva, 794

10

Case 1:16-cv-00231LM Document 53 Filed 02114/17 Page 11 of 14

F.3d at 192. Thus, the state court proceeding at issue here

falls neatly into the third category of the Younger taxonomy.

Second, the Middlesex factors all counsel in favor of

abstention. As the court has already explained, the June 13,

2016, show cause hearing in 11-0-741 was a "state proceeding

(judicial in nature)," Sirva, 794 F.3d at 192, and the date of

that hearing made Taal's state court proceeding ongoing on June

7, when Taal filed this action. Regarding the importance of the

state interest implicated by the show cause hearing in 11-C-741,

"[a] State's interest in the contempt process, through which it

vindicates the regular operation of its judicial system

.

.

.

is

surely an important interest." Juidice v. Vail, 430 U.S. 327,

335 (1977). Moreover, the Juidice court held that a state's

interest in its contempt process is not just important; it is

important enough to justify Younger abstention. See Id. As for

the final Middlesex factor, Judge DiClerico relied upon Juidice,

430 U.S. 337 & n.14, for the proposition that the state court

show cause hearing that was pending when Taal filed 13-cv-545--JD

would provide him "with the opportunity to make his

constitutional argument." Taal, slip op. at 11. Given the

congruity between the show cause hearing at issue in 13-cv-545JD and the one in this case, Judge DiClerico's reasoning applies

with full force to this case.

11

Case 1:16-cv-00231--LM Document 53 Filed 02/14/17 Page 12 of 14

That leaves the final Sirva step, considering the handful

of exceptions to the Younger doctrine that the Supreme Court has

recognized. As the Sirva court explained:

Abstention is inappropriate, for example, when a state

proceeding is brought in bad faith, that is, for the

purpose of harassment. See Younger, 401 U.S. at 5354. So, too, a federal court need not stay its hand

if the state forum provides inadequate protection of

federal rights. See Gibson v. Berryhill, 411 U.S.

Abstention is likewise

564, 575, 578-79 (1973)

inappropriate wher a state statute is 'flagrantly and

patently violative of express constitutional

prohibitions." Younger, 401 U.S. at 53 (quoting

Watson v. Buck, 313 U.S. 387, 402 (1941)).

.

794 F.3d 192 (parallel citations omitted)

.

In this case, there

is not even a hint of a reason to believe that any of the

exceptions identified in Sirva might apply.

Having proceeded through all 'three steps of the Sirva

approach to Younger abstention, the court concludes that

abstention is warranted in this case. In reaching that

conclusion, the court acknowledges that June 13, 2016, the date

of the show cause hearing that was pending when Taal filed this

action, has come and gone. And, indeed, Judge Ruoff held the

June 13 hearing and issued an order. But, as the court has

noted, the proper frame of reference for applying the principles

of Younger abstention is the state of affairs as of the date on

which the federal action is filed. See Coggeshall, 604 F.3d at

664. Because the circumstances of this case fit within the

Sirva paradigm when the case was filed, the court must abstain.

12

Case 1:16-cv-00231-LM Document 53 Filed 02/14/17 Page 13 of 14

Abstention, in turn, compels the court to grant the motion to

dismiss filed by the SMB defendants. See Sirva, 794 F.3d at 200

(affirming district court's dismissal when abstention was

appropriate)

.

Because the SMB defendants' invocation of Younger

abstention entitles them to the dismissal of Taal's complaint,

the court need not reach the other grounds for dismissal that

they raise in their motion to dismiss.

C. The Four Remaining Motions

Several loose ends remain, in the form of four additional

pending motions. First, plaintiff moves the court to allow him

to bring a telephone to court to use for research during the

pretrial conference, any subsequent hearings, and the trial of

this matter. Because this order dismisses all of plaintiff's

claims, his motion to bring a phone to court is denied as moot.

Also pending are Taal's motions for sanctions, against

Kathleen Marquis, Rita Emerson-Lamont, and Donald St. Germaine,

for failing to avail themselves for depositions. However, in an

order dated August 18, 2016, the Magistrate Judge granted

motions to quash the deposition subpoenas that Taal issued to

Marquis, Emerson-Lamont, and St. Germaine, on grounds that they

In addition, while Judge Abramson is entitled to dismissal

on the basis of judicial immunity, it seems clear that the

foregoing abstention analysis would apply equally to Taal's

claims against Judge Abramson, given that Taal asserts all six

of his claims against all four defendants, without drawing any

meaningful distinctions between them.

13

Case 1:16-cv-00231-LM Document 53 Filed 02/14/17 Page 14 of 14

were issued prematurely. If Taal's subpoenas were issued

prematurely then, necessarily, Marquis, Emerson-Lamont, and St.

Germaine cannot be sanctioned for failing to attend the

depositions noticed in those subpoenas. Accordingly, Taal's

three motions for sanctions are all denied.

IV. Conclusion

For the reasons detailed above, the motions to dismiss

filed by Judge Abramson, document no. 18, and by the SMB

defendants, document no. 24, are both granted. Plaintiff's

motion to bring a mobile telephone to court, document no. 36, is

denied as moot. And plaintiff's three motions for sanctions,

documents 19, 20, and 26, are all denied. Based on the

foregoing, the clerk shall enter judgment accordingly and close

this case.

SO ORDERED.

LandyaC.0 fe ty

District Judge

United Sta

February 14, 2017

cc:

Jay M Niederman, Esq.

Ellen N. Rogeres, Esq.

Nancy J. Smith, Esq.

Baboucar Taal, pro se

Gregory T. Uliasz, Esq.

14

Additional material

40

from this filing is

availabl e in the

Cler'k's Office.