Noel et al v. Louis et al

Filing 36

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting defendants' motions to dismiss 30 , 22 , 24 and 26 . (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

BARTHINE NOEL and
ARNOLD NOEL
Plaintiffs,
v.
JEAN STENIO LOUIS, ET AL,
Defendants.

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CIVIL ACTION NO.
12-11303-DPW

---------------------------------------------------------------BARTHE ROMELUS, BARTHINE
NOEL and ARNOLD NOEL
Plaintiffs,
v.
ST. ELIZABETH’S MEDICAL
CENTER, ET AL
Defendants.

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CIVIL ACTION NO.
12-12095-DPW

MEMORANDUM AND ORDER
September 30, 2013
The claims in these two lawsuits, brought by pro se
litigants, concern disturbing allegations of misconduct in
connection with proceedings that have been, and perhaps still are
being, conducted in the Massachusetts state courts regarding endof-life matters for Clarizilia Fleurimond.

Ms. Fleurimond was

the mother of plaintiffs Barthe Romelus and Barthine Noel and the
mother-in-law of plaintiff Arnold Noel.
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Federal courts, however,

are bound by the limits of their jurisdiction and do not provide
the proper venue in which to pursue such claims.

As a

consequence, I will direct the Clerk to dismiss both cases for
failure to state a claim on which this court may grant relief.
In order to bring the claims plaintiffs seek to pursue
within the limits of federal court jurisdiction, there must
either be a question of federal law, 28 U.S.C. § 1331, or
complete diversity of citizenship between plaintiffs and
defendants, 28 U.S.C. § 1332.

See Rodriquez v. SK&F Co., 833

F.2d 8 (1st Cir. 1987) (per curiam).

The plaintiffs fail to

present a viable federal question upon which relief can be
granted.

Moreover, there is no diversity jurisdiction because

all parties (with the exception of NMS Labs in Civil Action No.
12-12095) seem to be Massachusetts citizens and consequently lack
complete diversity is lacking.

I have afforded Plaintiffs in

both of these cases the opportunity to demonstrate how this court
has authority to consider their claims.

They have not done so.1

In Civil Action 12-11303, I permitted Plaintiffs to file
an amended complaint. I find, that even as amended, their
complaint does not remedy the identified deficiencies.
Thereafter, at a Scheduling Conference in Civil Action No. 1212095, I declined Plaintiffs’ oral motion to amend their
complaint in that action. I did so in order to avoid the expense
and delay of another round of motion practice of the type which
was demonstrably unhelpful to the plaintiffs in Civil Action No.
12-11303. Instead, I directed them to file an explanatory
submission outlining their case in light of the concerns I
expressed. Plaintiffs have not made any such submission despite
the passage of a substantial period of time within which to do
so.
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I. GENERAL THRUST OF PLAINTIFFS’ CLAIMS
Plaintiffs are fundamentally dissatisfied with the treatment
they have received in state court and view those proceedings as
unfairly conducted.

They do not consider their views to have

been adequately heard and considered and they view the several
defendants to have been part of a larger conspiracy against them.
They are suspicious and resentful about the procedures by which
their disputes are resolved.
As pro se litigants, the plaintiffs appear not fully
familiar with the limits inherent in the federal judicial process
as a result of our system of federalism.

Given that lack of

familiarity, suspicion and quickly ignited resentment were
evident at the hearing on November 14, 2012 in Civil Action No.
12-12095 where the plaintiff Noel alternately asked for
explanations regarding procedures and then objected that such
advice was demeaning.

He coupled that approach with ungrounded

accusations of lack of proper judicial demeanor when an attempt
was made to assure that questions which arose would be presented
in an orderly and linear manner.

It is unclear whether, given

their suspicions and resentment, the plaintiffs will fully
understand the technical legal principles which require me to
direct dismissal of these cases in this court.

But I attempt in

this Memorandum and Order to explain why generalized
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dissatisfaction with state court proceedings, even when framed
with the conclusory form of words customarily used to invoke
federal jurisdiction, cannot overcome limitations on the
authority of the federal court to address their claims.
II. CIVIL ACTION NO. 12-11303
The amended complaint in Civil Action No. 12-11303 purports
by terms to raise federal questions.

However, upon examination,

it is apparent that those claims cannot be heard in this court
because, among other disabling difficulties, they cannot overcome
absolute sovereign and judicial immunity for any of the counts
against Defendant Magistrate Owens, acting in his judicial
capacity (Counts I, II, III , IV and V), and similarly against
Defendant Judge Kaplan (Count VI).
Waco, 502 U.S. 9, (1991).

See generally Mireles v.

Such claims cannot satisfy the limited

grant of federal jurisdiction through conclusory conspiracy
allegations against non-state actors such as private attorneys
appearing in state court (Counts III - defendants Guerrier &
Associates, Casseus and Mashmasarmi, and Counts VI - all
defendants, and VII - “counsels”).

Cf. Estate of Bennett v.

Wainwright, 548 F.3d 155, 162 (1st Cir. 2008).
In the absence of some state actor against whom federal
civil rights claims may be asserted, no federal question
jurisdiction exists on the basis of Plaintiffs’ initial or
amended complaint.

To be sure, Counts III and IV purport to
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assert federal question claims for civil conspiracy and failure
to prevent actionable harm, claims which might in certain
circumstances not require state action.

See United Broth of

Carpenters & Janitors of Am. Local 610 v. Scott, 463 U.S. 825,
840-41 (1983).

However, the Plaintiffs still cannot sustain

their claims here because essentially they assert harm to a right
they do not have - the issuance of a criminal complaint - see
Victory Distrib., Inc. v. Ayer Div. of the District Dep’t., 755
N.E.2d 273, 278 (Mass. 2001), and the alleged conspiracy does not
appear to have been motivated by some actionably suspect animus.
Count VII, for fraud on the court, is not a recognized federal
claim.

As a potential state law claim for fraud, it fails as a

grounds for federal jurisdiction - along with any other state law
claims that might be implicit in the several counts - because the
parties do not have complete diversity of citizenship and
supplemental jurisdiction is not appropriate, particularly when
there is plainly no federal question at the outset.

For its

part, Count VIII seeks to have this court enter an injunction
without jurisdiction to do so.
III. CIVIL ACTION NO. 12-12095
In Civil Action No. 12-12095, I find the asserted federal
question claims - Count V for violation of federal health privacy
law by defendants St. Elizabeth’s Medical Center, Devardo and
Sanders; and Count XVII for federal civil rights violations based
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on of Equal Protection and Breach of Fiduciary Duty against
defendant Lamb - do not invoke any legal principles upon which
federal relief can be provided.
The Health Insurance Portability and Accountability Act
(“HIPAA”, not “HIPPA”, as identified by plaintiffs) provides no
private right of action through which the Plaintiffs can pursue
claims.

See Miller v. Nichols, 586 F.3d 53, 59-60 (1st Cir.

2009).

The allegations against Defendant Lamb fail to state a

claim because there is no showing of any failure, on some
actionably suspect basis, to treat similarly situated persons
similarly, and because a law enforcement officer’s duties cannot
be characterized as fiduciary in character.

See generally Town

of Castle Rock v. Gonzales, 545 U.S. 748, 768 (2005).
The remaining state claims,2 which do not by terms or in
These claims, somewhat anomalously numbered, include:
Count I, Negligence [medical malpractice] against defendant
Bonnet;
Count II, Lack of Consent and Battery against defendants
Osman, Moorthy, Resteghini and Devardo;
Count III, Intentional Infliction of Emotional Distress,
Breach of Fiduciary Duty, and Violation of the Civil Right [sic]
of Arnold Noel against defendant St. Elizabeth’s Medical Center,
Devardo and Harvey;
Count VI [sic, presumably IV since this is the fourth count
in order and there is another Count VI in proper sequence],
Forgery and Intentional Misreprestation [sic] and Deciet [sic]
against defendants Louis, Fleurissaint and Sanders;
Count VI Joint and Several Liability, Breach of Fiduciary
Duty Negligence and Negligence per se [essentially medical
malpractice] against defendants Brigham & Women's Hospital,
Asnani, Morrow and Menza;
Count VII, Loss of Consortium against defendants Brigham &
Women’s Hospital, Morrow and Asnani;
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substance raise a federal question, fail for lack of diversity
because Plaintiffs and Defendants are citizens of Massachusetts.
I decline to exercise supplemental jurisdiction in this matter.
These claims belong in state court, if they are viable at all.
IV. GENERAL LIMITATIONS ON FEDERAL COURT JURISDICTION
TO REVIEW STATE PROCEEDINGS
At their substantive core, these cases come to federal court
seeking to challenge state proceedings concerning care for a
family member during her last days and the disposition of her
assets and remains after her passing.

These traditionally state

law disputes have been the subject of extensive state court
proceedings and it is through state court process that the
disputes must be resolved.
Count VIII, Intentional Inference [sic] and Intentional
Infliction of Emotional Distress against defendants The Office of
Chief Exainers [sic], Faherty, Guerrier & Associations, Guerrier,
Casseus and Mashmasarmi;
Count IX, Breach of Contract against defendants Guerrier &
Associates, Guerrier, Casseus and Mashmasarmi;
Count XII, Conversion against defendants Guerrier &
Associates, Guerrier, Casseus and Mashmasarmi;
Count XIII Aquitable [sic] Accounting against defendants
Guerrier & Associates, Guerrier, Casseus, Mashmasarmi and Louis;
[No Count XIV is asserted at this point.]
Count XV, Defamation and Slander against defendant Louis
Count XVI, Dishonest Assistance and Civil Conspiracy 93A
Deceptive Trade Practice against defendants, Guerrier, Casseus,
Mashmasarmi, Officice Chief Examieners Offices [sic], Faherty,
Sanders and Fleurissaint; and
Count XVII [the first of two counts denominated XVII],
Breach of Fiduciary Duty and Negligent Handling of Body of
Clairsilia Fleumond against defendants Office of the Chief
Medical Examiers [sic], Louis, Guerrier and Faherty.

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While certain of the state proceedings are apparently still
ongoing, it also appears that the Plaintiffs have not fully
pursued their appellate and review rights regarding claims they
have made.

Failure to pursue state appellate review or other

state procedural opportunities does not open the doors of the
federal courts as an alternative forum to press those state
claims.

Fundamental questions regarding the allocation of

judicial authority between the federal and state courts, not
developed by the parties, would separately counsel dismissal of
these cases altogether even if the lack of both federal question
and diversity jurisdiction discussed in Sections II and III,
supra, were not sufficient to do so.
The Supreme Court in Moore v. Sims, 442 U.S. 415 (1977) made
clear that a federal court should abstain and dismiss a claim
when, as here, a plaintiff mounts a collateral challenge to state
proceedings in which important family interests are being
litigated.

I am satisfied that the state family law issues at

issue here were and are the province of the state courts to
adjudicate.

All the various claims that the Plaintiffs seek to

reframe in these proceedings were or could have been litigated in
the state court.

They may not be reprised in this court on the

basis that the Plaintiffs are unsatisfied with, or unwilling to
pursue opportunities for, further state court review.

See

generally Chapman v. Oklahoma, 472 F.3d 747 (10th Cir. 2006);
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Liedel v. Juvenile Court of Madison County, 891 F.2d 1542 (11th
Cir. 1990).

To the degree the state procedures are ongoing, I

would abstain and dismiss even if Plaintiffs had adequately pled
- which they have not been able to do to date and show no
prospect of doing so in the future - federal court jurisdiction.
To the degree that any of the state court proceedings have
reached finality, this court has no “jurisdiction over a
challenge to a state court judgment to which the challenger was a
party.”

Miller, 586 F.3d at 59.
V.

For these reasons, the several motions to dismiss of the
Defendants will be ALLOWED and the Clerk is directed to dismiss
these two complaints.

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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