United States District Court, D. Vermont
ORDER AND REPORT AND RECOMMENDATION (Docs. 1,
M. Conroy United States Magistrate Judge
Adams, proceeding pro se, moves for leave to proceed
in forma pauperis. (Doc. 1.) Adams seeks to file a petition
under 28 U.S.C. § 2254 against the State of Vermont and
the State of Georgia. (Doc. 1-2.) She has filed a form
application to proceed in district court without prepaying
fees or costs. (Doc. 1.) Because the financial affidavit in
support of her application (Doc. 1-1) meets the requirements
of 28 U.S.C. § 1915(a), the Application for Leave to
Proceed in Forma Pauperis is GRANTED. For the reasons set
forth below, however, I recommend Adams's Petition (Doc.
1-2) be dismissed.
not Adams's first attempt to sue the State of Vermont and
the State of Georgia in this court. In January 2013, Adams
filed an action in this court arguing her passport was
improperly restricted because of an allegedly unlawful child
support order and subsequent enforcement of her child support
obligations. See Adams v. Georgia Div. of Child Support
Servs., No. 2:13-cv-10 (D. Vt. Jan. 16, 2013). The case
was eventually dismissed as to the Georgia defendants based
on lack of personal jurisdiction and as to the State of
Vermont, inter alia, for mootness because Adams had
obtained a valid passport. Id. 2015 WL 4755721 (Aug.
11, 2015); 2015 WL 1015339 (Mar. 6, 2015).
litigation stemmed from divorce proceedings in Georgia,
beginning in 2005, that resulted in sole legal and physical
custody of Adams's son being awarded to her ex-husband,
Mr. George, in November 2007. She was ordered to pay child
support in the amount of $601 per month. She subsequently
filed suit against various parties, including her ex-husband
and state officials, in the United States District Court for
the Northern District of Georgia. See Adams v.
Georgia, No. 1:08-cv-280 (N.D.Ga. June 30, 2008);
Adams v. Georgia, No. 1:07-cv-2924-WSD-CCH, 2008 WL
649179 (N.D.Ga. Mar. 5, 2008). She has also sought relief in
the Court of Federal Claims. Adams v. United States,
No. 07-809C, 2008 WL 4725452 (Fed. Cl. July 16, 2008). And
her efforts to access the Supreme Court have been denied.
See Adams v. George, 553 U.S. 1022 (2008); Adams
v. George, 552 U.S. 1115 (2008); Adams v.
George, 552 U.S. 1049 (2007).
moved to Vermont in 2010. In May 2013, the Vermont Superior
Court registered the Georgia child support order. Adams,
represented by counsel, sought relief from the judgment and
contested the garnishment amount. Her arguments before the
state courts were unsuccessful, and her claims were
ultimately denied by the Vermont Supreme Court. George v.
Adams, No. 2014-424, 2015 WL 2383816 (Vt. May 14, 2015).
2015, she initiated two more actions against multiple
defendants including the States of Vermont and Georgia.
See Adams v. Vermont Office of Child Support, No.
2:15-cv-160 (D. Vt. July 13, 2015); Adams v. Vermont
Office of Child Support, No. 1:15-cv-228 (D. Vt.Oct. 26,
2015). The October case was dismissed for lack of
jurisdiction over the Georgia defendants and, inter
alia, under the Rooker-Feldman doctrine as to
the Vermont defendants. Adams, Case No.
1:15-cv-228-jgm, 2016 WL 3546301 (June 22, 2016), 2017 WL
2493127 (June 8, 2017). The July case was dismissed sua
sponte, after granting in forma pauperis status, for lack of
personal jurisdiction over the Georgia defendants and under
principles of res judicata and Eleventh Amendment immunity as
to the Vermont defendants. Adams, No. 2:15-cv-160,
ECF No. 3, appeal docketed, No. 17-31 (2d Cir. Jan.
4, 2017), ECF No. 6. An initial appeal of the October case
was dismissed for lack of jurisdiction, Adams, No.
1:15-cv-228, ECF No. 48 (Mandate) (Dec. 29, 2016), and is
again on appeal, No. 17-2061 (2d Cir. June 30, 2017).
commenced this § 2254 action against the States of
Vermont and Georgia on June 30, 2017. (Docs. 1, 1-2.) She
alleges she was incarcerated in Vermont for two days from
October 27-29, 2015, for criminal contempt of court, later
vacated in March 2016, and five days from July 1-5, 2016, for
failure to appear. (Doc. 1-2 at 1-2.) She incompatibly
asserts the sentences are “of continuing nature”
and that she has “[n]o further sentence to
serve.” Compare Id. at 2, ¶ 10 with
Id. at 11, ¶ 29. She alleges she has “not
challenged the conviction or sentence beyond the vacation for
the first sentence, and ha[s] not challenged the second
sentence, prior to this motion.” (Id. at 2,
further asserts she “continues to be restrained by . .
. attitudes which amount to further restrain and imprisonment
beyond the sentence already served.” (Id. at
6, ¶ 17.) She alleges the Offices of Child Support for
the states of Vermont and Georgia “continue to
restrain [her] access to the program for both modification
and visitation of her minor child, ” including
unlawfully restraining her access to federally funded
programs to access visitation with her child. (Id.
at 3, ¶ 11.) She describes violations of her right to
non-discrimination and rights to medical care and autonomy.
(Id. at 2-3.)
se filings are “to be liberally construed, and a
pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (internal quotation marks and citation
omitted). A district court may dismiss an in forma pauperis
matter, however, if it determines the complaint “(i) is
frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C.
courts have limited jurisdiction, and may not preside over
cases if they lack jurisdiction. Bender v. Williamsport
Area Sch. Dist., 475 U.S. 534, 541 (1986). Furthermore,
federal courts “have an independent obligation to
consider the presence or absence of subject[-]matter
jurisdiction sua sponte.” Joseph v. Leavitt,
465 F.3d 87, 89 (2d Cir. 2006); see also Fed. R.
Civ. P. 12(h)(3) (“If the court determines at any time
that it lacks subject-matter jurisdiction, the court must
dismiss the action.”). “[T]he party asserting
federal jurisdiction bears the burden of establishing
jurisdiction.” Blockbuster, Inc. v. Galeno,
472 F.3d 53, 57 (2d Cir. 2006). While, as noted, the court
must liberally construe the complaint to raise the strongest
argument it suggests, where subject-matter jurisdiction is
lacking, nonetheless, the “court has the duty to
dismiss the action sua sponte.” Durant, Nichols,
Houston, Hodgson & Cortese-Costa P.C. v. Dupont, 565
F.3d 56, 62-63 (2d Cir. 2009).
person in custody pursuant to the judgment of a State
court” may seek vacatur of the state-imposed conviction
and sentence by applying for a writ of habeas corpus in
federal court. 28 U.S.C. § 2254(a). For a federal court
to have jurisdiction, a habeas petitioner must be “in
custody” at the time her § 2254 petition is filed.
Vega v. Schneiderman, 861 F.3d 72, 74 (2d Cir.
2017); 28 U.S.C. § 2254(a) (“a district court
shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a
State court”). The “in custody” requirement
is “[t]he first showing a § 2254 petitioner must
make.” Lackawanna Cty. Dist. Attorney v. Coss,
532 U.S. 394, 401 (2001). Habeas petitioners such as Adams
bear the burden of demonstrating their entitlement to relief
under § 2254. Triana v. United States, 205 F.3d
36, 40 (2d Cir. 2000) (stating claimant has burden to prove
claim by preponderance of evidence).
the custody requirement may be satisfied by restraints other
than “actual, physical custody” incarceration,
Jones v. Cunningham, 371 U.S. 236, 239-40 (1963), it
is designed to preserve the writ for “severe restraints
on individual liberty.” Vega, 861 F.3d at 74
(internal quotation marks and citation omitted). For example,
“[p]ost-release supervision, admitting of the
possibility of revocation and additional jail time, is
considered to be ‘custody.'” Earley v.
Murray, 451 F.3d 71, 75 (2d Cir. 2006) (citation
omitted); see also Nowakowski v. New York, 835 F.3d
210, 217 (2d Cir. 2016) (holding a one-year conditional
discharge requiring performance of one day of community
service to be a sufficient restraint on liberty to satisfy
the statutory requirement because it required
petitioner's physical presence at particular times and
locations). Restitution orders, however, are not sufficient
restraints on liberty to meet the “in custody”
requirement. See, e.g., Kaminski v. United
States, 339 F.3d 84, 87-88 (2d Cir. 2003). Likewise, a
petitioner's removal from the bench, revocation of his
license to practice law, and disqualification as a real
estate broker and insurance agent were not ...