Brady v. Howard et al

Filing 8

///ORDER granting 6 Motion to Dismiss. For the foregoing reasons, I grant defendants' motion to dismiss for lack of subject matter jurisdiction (Doc. No. 6). The clerk is directed to enter judgment accordingly and close the case. So Ordered by Judge Paul J. Barbadoro.(js)

Case 1:21-cv-00614-PB Document 8 Filed 01/07/22 Page 1 of 14

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Lisa M. Brady
v.

Case No. 21-cv-614-PB
Opinion No. 2022 DNH 006

Mark E. Howard et al.

MEMORANDUM AND ORDER
Lisa Brady, appearing pro se, has sued New Hampshire
Superior Court Judge Mark Howard and four Justices of the New
Hampshire Supreme Court.

Brady’s claims arise out of her failed

state court action challenging the termination of her employment
as a middle school teacher in Somersworth, New Hampshire.

After

Judge Howard disposed of her claims against the school
defendants on summary judgment, Brady unsuccessfully appealed to
the New Hampshire Supreme Court.

She later filed this federal

complaint, seeking to revive her state action because defendants
allegedly failed to afford her due process and equal protection
during the state court proceedings and penalized her for
exercising her First Amendment rights.

Defendants have moved to

dismiss the complaint for lack of subject matter jurisdiction
and for failure to state a claim.

Because the Rooker-Feldman

doctrine deprives this court of jurisdiction to review and
reverse the state court judgment, defendants’ motion is granted.

Case 1:21-cv-00614-PB Document 8 Filed 01/07/22 Page 2 of 14

I.

BACKGROUND

This case stems from Brady’s seven-year-long effort to
challenge the termination of her employment as a special
education teacher in the Somersworth School District in 2015.
See Compl. ¶ 2, Doc. No. 1.

She alleges that she was fired in

retaliation for reporting to the New Hampshire Commissioner of
Education that the school district and the University of New
Hampshire Institute on Disability had fraudulently portrayed one
of Brady’s autistic students in a documentary film as having
recovered from a severe cognitive impairment using junk science.
Id. ¶¶ 2-4.

Brady first sued the school district and several

school officials in federal court.

The court (Judge DiClerico)

dismissed her federal claims for failure to state a claim and
declined to exercise supplemental jurisdiction over her state
law claims.

Brady v. Sch. Bd., Somersworth Sch. Dist., 2016 DNH

204, 2016 WL 6537629, at *1 (D.N.H. Nov. 3, 2016), aff’d, No.
16-2448, Slip Op. (1st Cir. Oct. 13, 2017).

Brady then filed a

complaint in the Strafford County Superior Court, challenging
her termination on state law grounds.

Compl. ¶¶ 1, 9.

The case

was assigned to Judge Howard.
In December 2019, Judge Howard granted the school
defendants’ motion for summary judgment on all claims.
¶ 19; see Compl. Ex. 15, Doc. No. 1-3 at 2-13.

Compl.

Brady moved for

reconsideration on the ground that the court had overlooked and
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misconstrued material facts.
No. 1-3 at 15-20.

Compl. ¶ 23; Compl. Ex. 16, Doc.

After Judge Howard denied her motion, Brady

again moved for reconsideration, this time arguing that the
summary judgment ruling had erroneously cited her original
complaint instead of her amended complaint, which she maintains
had cured the deficiencies of the original pleading and mooted
defendants’ motion for summary judgment.
Compl. Ex. 18, Doc. No. 1-3 at 24-29.

Compl. ¶¶ 24-26; see

Judge Howard denied the

second motion for reconsideration as untimely.

Compl. ¶ 27.

Brady then appealed the summary judgment ruling to the New
Hampshire Supreme Court.

Id. ¶ 33.

Among the alleged errors

she raised was the trial court’s reliance on her superseded
complaint.

See id.; Compl. Ex. 20, Doc. No. 1-3 at 35.

On July 21, 2020, the New Hampshire Supreme Court dismissed
Brady’s appeal as untimely.
No. 1-3 at 59.

Compl. ¶ 34; Compl. Ex. 21, Doc.

The court explained that Brady had filed her

notice of appeal more than thirty days after the denial of her
first motion for reconsideration and that her successive motion
did not toll the running of the appeal period.
Doc. No. 1-3 at 59.

Compl. Ex. 21,

Brady moved for reconsideration, arguing

that the timeliness requirement should be waived in part because
Judge Howard’s error violated her due process rights and
amounted to “fraud on the court.”
at 66.

Compl. Ex. 22, Doc. No. 1-3

The New Hampshire Supreme Court denied the motion on
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August 18, 2020.

Compl. ¶ 38; Compl. Ex. 23, Doc. No. 1-3 at

69.
After her direct appeal of the summary judgment ruling
proved unsuccessful, Brady twice petitioned the New Hampshire
Supreme Court to exercise its original jurisdiction over her
claims of judicial error in the superior court action.
¶¶ 40, 43.

Both petitions were denied.

Compl.

See Compl. Ex. 26, Doc.

No. 1-3 at 89; Compl. Ex. 28, Doc. No. 1-3 at 105.

Brady’s

motion for reconsideration of the denial of her second petition
was pending before the New Hampshire Supreme Court when she
filed her federal complaint on July 22, 2021.
Compl. Ex. 29, Doc. No. 1-3 at 107-14.

Compl. ¶ 41; see

The following week, the

New Hampshire Supreme Court denied the motion, explaining that
Brady’s second petition raised the same issues that she had
litigated unsuccessfully both on direct appeal of the summary
judgment ruling and in her first petition.

See Ex. 1 to Pl.’s

Obj. to Defs.’ Mot. to Dismiss, Doc. No. 7 at 14.
Brady’s federal complaint seeks declaratory and injunctive
relief under 42 U.S.C. §§ 1983 and 1985(3) on the ground that
Judge Howard and the New Hampshire Supreme Court Justices
violated her rights under the First and Fourteenth Amendments to
the U.S. Constitution.

As she argued in her state court

proceedings, Brady alleges that Judge Howard erroneously relied
on her superseded complaint to grant the school defendants’
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motion for summary judgment.

From this, Brady asserts that

Judge Howard engaged in “trickery and fraud on the court to
dispose of [her] civil case” with the “sinister” intent of
defaming her and retaliating against her.
see id. ¶¶ 21, 28, 29, 31.

Compl. ¶¶ 1, 18, 20;

She likewise asserts that the New

Hampshire Supreme Court Justices acted in “bad faith” because
they “tacitly approved and perpetuated Judge Howard’s unlawful
and intentional use of legally void pleadings,” thereby
“show[ing] a concerted effort to deny . . . her right to access
the courts in the state of New Hampshire.”

Id. ¶¶ 31, 36, 39.

Based on these allegations, Brady requests “an injunction
requiring the Defendants to remand [her] civil case back to
Strafford Superior Court so that she can seek justice for her
unlawful termination.”

Id. at 24.

She also seeks declarations

that Judge Howard’s summary judgment ruling and the New
Hampshire Supreme Court’s July 21, 2020 order dismissing her
direct appeal of that ruling were abuses of discretion and
violated her federal constitutional rights.

Id.

Defendants have moved to dismiss the complaint under Rule
12(b)(1) on the ground that this court lacks subject matter
jurisdiction under the Rooker-Feldman doctrine.

In the

alternative, defendants argue that dismissal is warranted under
Rule 12(b)(6) because Brady’s claims are barred by judicial and
sovereign immunity.

Because I conclude that the complaint must
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be dismissed for lack of subject matter jurisdiction, I do not
reach defendants’ alternative arguments.
II.

STANDARD OF REVIEW

When subject matter jurisdiction is challenged under Rule
12(b)(1), “the party invoking the jurisdiction of a federal
court carries the burden of proving its existence.”

Murphy v.

United States, 45 F.3d 520, 522 (1st Cir. 1995) (cleaned up).
Thus, where, as here, a plaintiff sues in federal court, the
burden to establish jurisdiction is on the plaintiff.

See id.

In determining whether Brady has met this burden, I must
construe the complaint liberally, treat all well-pleaded facts
as true, and view them in the light most favorable to her.
Fothergill v. United States, 566 F.3d 248, 251 (1st Cir. 2009).
I may also consider extrinsic evidence, such as exhibits and
affidavits, without converting the motion to dismiss into one
for summary judgment.

See Carroll v. United States, 661 F.3d

87, 94 (1st Cir. 2011); Pitroff v. United States, 2017 DNH 158,
2017 WL 3614436, at *3 (D.N.H. Aug. 22, 2017).
III. ANALYSIS
Defendants’ principal argument is that this court lacks
subject matter jurisdiction over Brady’s claims under the
Rooker-Feldman doctrine because her claims amount to an
impermissible attempt to appeal a final state court judgment to
a federal district court.

In her objection, Brady argues that
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the doctrine does not apply because (1) her state court
proceedings were not final when she filed her federal complaint,
and (2) she is not challenging the state court judgment but
conspiratorial conduct that corrupted the judicial process.
The Rooker-Feldman doctrine presumes that, with some
exceptions not relevant here, the U.S. Supreme Court has
exclusive jurisdiction over state court judgments. Klimowicz v.
Deutsche Bank Nat’l Tr. Co., 907 F.3d 61, 64–65 (1st Cir. 2018).
The doctrine divests federal district courts of jurisdiction
over “cases brought by state-court losers complaining of
injuries caused by state-court judgments rendered before the
district court proceedings commenced and inviting district court
review and rejection of those judgments.”

Exxon Mobil Corp. v.

Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).

In other

words, “if federal litigation is initiated after state
proceedings have ended, and the plaintiff implicitly or
explicitly seeks review and rejection of the state judgment,
then a federal suit seeking an opposite result is an
impermissible attempt to appeal the state judgment to the lower
federal courts.”

Federación de Maestros de P.R. v. Junta de

Relaciones del Trabajo de P.R., 410 F.3d 17, 24 (1st Cir. 2005)
(cleaned up).

When Rooker–Feldman applies, this court lacks

subject matter jurisdiction to review a state court judgment
even if the judgment is wrong or was entered following patently
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unconstitutional proceedings.

See D.C. Ct. App. v. Feldman, 460

U.S. 462, 486 (1983).
Brady’s own pleadings make clear that the Rooker-Feldman
doctrine bars her federal suit.

The state court proceedings

ended before Brady – the losing party in those proceedings –
filed this federal action.

For purposes of Rooker-Feldman,

state court proceedings have ended if the highest state court in
which review is available has affirmed the judgment below,
rendering the judgment susceptible to certiorari review under 28
U.S.C. § 1257.

Federación, 410 F.3d at 24.

“Put another way,

if a state court decision is final enough that the Supreme Court
does have jurisdiction over a direct appeal, then it is final
enough that a lower federal court does not have jurisdiction
over a collateral attack on that decision.”

Id. at 27.

The New

Hampshire Supreme Court issued its final decision in Brady’s
superior court action on August 18, 2020, when it denied her
motion to reconsider its order declining to entertain her direct
appeal from the entry of summary judgment.

At that point, the

trial court’s order granting the school defendants’ motion for
summary judgment became a final state court judgment appealable
to the U.S. Supreme Court.

Thus, Brady’s state court

proceedings ended almost a year before she filed this action in
July 2021.

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Brady argues that her state court proceedings were still
ongoing when she filed her federal complaint because the New
Hampshire Supreme Court had yet to adjudicate her motion for
reconsideration of the denial of her second petition for
original jurisdiction.

Her petitions for original jurisdiction,

however, did not extend the end date of her state court
proceedings for purposes of the Rooker-Feldman doctrine.

As the

New Hampshire Supreme Court explained, those petitions merely
rehashed the same arguments that Brady had raised unsuccessfully
in her direct appeal.

Stated differently, the petitions were

failed attempts to get second and third bites at the apple.

A

litigant cannot revive a final state court judgment with postjudgment maneuvers that have no basis in the law.

Thus, the

fact that one of Brady’s improperly filed post-judgment
petitions was pending when this lawsuit was filed is inapposite.
It is equally clear that Brady’s federal action pertains to
alleged injuries caused by the state court judgment.

The

complaint challenges as fraudulent, improper, and illegal the
trial court’s entry of summary judgment in the school
defendants’ favor and the New Hampshire Supreme Court’s decision
to decline appellate review.

According to Brady, defendants

used those adverse rulings to deny her a meaningful opportunity
to contest her unlawful termination at trial, in violation of
her due process, equal protection, and free speech rights.
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At

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bottom, the complaint asserts that defendants violated Brady’s
civil rights by ruling against her.

Her federal claims are,

therefore, a thinly veiled attack on the state court judgment
itself.

The only way for me to conclude that Brady suffered a

cognizable injury would be to find that defendants wrongly
decided the issues before them.

This is precisely the type of

suit that Rooker-Feldman prevents federal district courts from
hearing.
Brady argues that her conspiracy claim asserted under 42
U.S.C. § 1985(3) fits within an exception to Rooker-Feldman
because it alleges an injury independent of the state court
judgment.

Some courts have recognized that a conspiracy claim

falls outside of Rooker-Feldman if the claim is cognizable on
its face and pleads an injury distinct from the state court
judgment.

See, e.g., Great W. Mining & Min. Co. v. Fox

Rothschild LLP, 615 F.3d 159, 172 (3d Cir. 2010); FriersonHarris v. Kall, 198 F. App’x 529, 530 (7th Cir. 2006).

Brady’s

conspiracy claim, however, does not fit within this exception
because it is neither cognizable under § 1985(3) nor based on an
independent injury.
Section 1985(3) creates a private cause of action “for
injuries occasioned when ‘two or more persons . . .
conspire . . . for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal
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protection of the laws, or of equal privileges and immunities
under the laws.’”

Burns v. State Police Ass’n of Mass., 230

F.3d 8, 12 n.3 (1st Cir. 2000) (quoting 42 U.S.C. § 1985(3)).
To state a claim under this statute, “the plaintiff must, among
other requirements, allege that the conspiratorial conduct of
which [she] complains is propelled by some racial, or perhaps
otherwise class-based, invidiously discriminatory animus.”
Diva’s Inc. v. City of Bangor, 411 F.3d 30, 38–39 (1st Cir.
2005) (cleaned up).
of pro se litigants.

Brady alleges that she belongs to a class
That, however, is not a cognizable class

for purposes of § 1985(3).

Scheib v. Butcher, 602 F. App’x 67,

68 n.1 (3d Cir. 2015); Anderson v. Sullivan, 877 F.2d 64 (9th
Cir. 1989) (table); Eitel v. Holland, 787 F.2d 995, 1000 (5th
Cir.), on reh’g, 798 F.2d 815 (5th Cir. 1986). 1

Thus, Brady has

failed to plausibly allege that § 1985(3) even provides relief
for the type of conspiracy defendants purportedly formed against
her.
Moreover, Brady’s conspiracy claim does not assert an
injury independent of the state court judgment.

Rather than

The alternative animus alleged in the complaint fares no
better. Brady alleges that defendants conspired to preclude her
from going to trial because the University of New Hampshire had
a vested interest in selling the purportedly fraudulent film
featuring Brady’s autistic student. But “conspiracies motivated
by economic or commercial animus” are outside the scope of
§ 1985(3). United Bhd. of Carpenters & Joiners of Am., Local
610 v. Scott, 463 U.S. 825, 838 (1983).
1

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alleging facts indicative of a corrupt judicial process, Brady
merely speculates that, because adverse rulings were made
against her, defendants must have engaged in a conspiracy to
deprive her of her day in court.

This is nothing more than an

improper attempt to recast her challenge to the adverse rulings
as a distinct injury under the guise of conspiracy.

See

Callaghan v. Shirazi, 215 F.3d 1312 (1st Cir. 2000) (table)
(holding that Rooker-Feldman barred a claim that defendants had
“conspired to cause the state court to reach a wrong result”
because “[a]s framed, it simply seems to be an indirect way of
again saying that the state court’s decisions were wrong”);
Frierson-Harris, 198 F. App’x at 530 (holding that plaintiff’s
conspiracy claim was barred by Rooker-Feldman where it was
“apparent from the complaint that the basis for the ‘conspiracy’
reaches no further than the state court’s adverse rulings and
not from a dishonest judicial proceeding”).

Accordingly,

Brady’s conspiracy claim is not exempted from Rooker-Feldman
because “the only real injury to [her] is ultimately still
caused by a state court judgment.”

Davison v. Gov’t of P.R. -

P.R. Firefighters Corps., 471 F.3d 220, 223 (1st Cir. 2006).
The final requirement for applying the Rooker-Feldman
doctrine – that the relief sought in federal court is directed
towards undoing the state court judgment – is also satisfied
here.

Brady seeks an injunction mandating that her civil case
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be remanded to the superior court for a new adjudication on the
merits, as well as declarations that the adverse rulings
violated her constitutional rights.

Because either form of

relief would “effectively reverse the state court decision or
void its holding,” her claims are barred by Rooker-Feldman.

See

Hill v. Town of Conway, 193 F.3d 33, 39 (1st Cir. 1999) (cleaned
up); see also Walton v. Claybridge Homeowners Ass’n, Inc., 433
F. App’x 477, 478-79 (7th Cir. 2011) (holding that plaintiff’s
suit against a state court judge and others was barred by
Rooker–Feldman where plaintiff asked for injunctive relief from
state court rulings); Marciano v. White, 431 F. App’x 611, 612
(9th Cir. 2011) (same); Frierson–Harris, 198 F. App’x at 530
(same).
Brady’s claims are, at their core, the claims of a
disgruntled litigant, asking this court to review and to deem
null and void state court orders that she believes are wrong and
injurious to her.

I would necessarily be called upon to review

the validity of those orders to adjudicate her federal claims.
Because the complaint “is, in effect, an end-run around a final
state-court judgment,” the Rooker-Feldman doctrine deprives me
of jurisdiction to consider Brady’s claims.
F.3d at 66–67.

13

See Klimowicz, 907

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IV.

CONCLUSION

For the foregoing reasons, I grant defendants’ motion to
dismiss for lack of subject matter jurisdiction (Doc. No. 6).
The clerk is directed to enter judgment accordingly and close
the case.
SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
January 7, 2022
cc:

Lisa M. Brady, pro se
Anne M. Edwards, Esq.

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