Taal v. St. Mary's Bank et al

Filing 53

///ORDER granting 18 Motion to Dismiss; granting 24 Motion to Dismiss; denying 20 Motion for Sanctions; denying 26 Motion for Sanctions; denying 19 Motion for Sanctions; denying as moot 36 Motion to Allow Phone at Hearings. Clerk shall enter judgment and close this case. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Baboucar Taal
v.

Civil No. 16-cv-231-LM
Opinion No. 2017 DNH 025

St. Mary’s Bank, Ronald
Covey, Gregory Uliasz,
and Gillian Abramson

O R D E R
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).1

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.

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.
1

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

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
injunction . . . against Taal which enjoined Taal from
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
filing the motion for contempt . . . and in attending
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

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.

action was Judge DiClerico’s case, 13-cv-545-JD.

That

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-C-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-C-741, he
appealed the superior court’s finding that he was in contempt of
the injunction barring contact with SMB employees.

The NHSC

affirmed, and in so doing, rejected Taal’s claim that Judge
4

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.
no. 1) 7, 11.

See Compl. (doc.

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 SMB $1,825 in
attorneys’ fees as one incident of defendants’ conspiracy
against him.

See Pl.’s Mem. of Law (doc. no. 25-1) ¶¶ 5, 8, 10;

Pl.’s Obj. (doc. no. 38) ¶¶ 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.

5

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:

6

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.
motive.

And he plainly alleges a corrupt, malicious

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.
Judge Abramson is entitled to judicial immunity.

Thus,

That, in turn,

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

7

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.”
F.3d at 192.

794

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)).
3

8

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 Commc’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.
In Middlesex, the Court . . . explained that a
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.

9

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.
10

See Sirva, 794

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-C-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.”
335 (1977).

Juidice v. Vail, 430 U.S. 327,

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

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 53–
54. 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.
564, 575, 578–79 (1973). Abstention is likewise
inappropriate when 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.
664.

See Coggeshall, 604 F.3d at

Because the circumstances of this case fit within the

Sirva paradigm when the case was filed, the court must abstain.
12

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).4

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.
4

13

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.

__________________________
Landya McCafferty
United States District Judge
February 14, 2017
cc:

Jay M Niederman, Esq.
Ellen M. Rogeres, Esq.
Nancy J. Smith, Esq.
Baboucar Taal, pro se
Gregory T. Uliasz, Esq.

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