* Published

ADMINISTRATIVE LAW - HUD

1/4/08   Brook Village North Associates v. Alphonso Jackson, Secretary, United States Department of Housing and Urban Development

Case No. 06-cv-46-JD, Opinion No. 2008 DNH 001

Brook Village, the owner of an apartment complex that was built with financing obtained in 1971 through provisions of the National Housing Act sought a declaratory judgment to permit it to prepay its mortgage loan and thereby remove the requirements for low income eligible housing in the complex.  At the core of the parties’ disagreement was the meaning of the phrase “not receiving  payments . . . under a supplemental contract” as used in the HUD regulation, 24 C.F.R.   236.30(a)(1)(I).  The parties filed cross-motions for summary judgment.  The court concluded that under the plain meaning of the disputed phrase, Brook Village was no longer receiving payments and was entitled to prepay its mortgage loan without prior approval from HUD.  Summary judgment was granted in favor of the plaintiff.  14 pages.  Judge Joseph A. DiClerico, Jr.

ARBITRATION

1/28/08 C.B. Sullivan Company, Inc. v. Graham Webb

Case No. 07-cv-170-SM, Opinion No. 2008 DNH 021

After defendant terminated the parties’ business relationship, plaintiff brought suit alleging that defendant breached its implied obligation to act fairly and in good faith, engaged in unfair and deceptive trade practices, and tortiously interfered with plaintiff’s contractual relations with its customers.  Defendant moved to dismiss, asserting that each of plaintiff’s claims is subject to the parties’ various arbitration agreements.  The court agreed, concluding that the parties plainly and consistently evidenced a desire to arbitrate any and all disputes arising out of their business relationship - even those arising after the parties’ terminated that relationship.  Accordingly, the court granted defendant’s motion to the extent it sought an order of the court remanding the case for arbitration.  15 pages.  Chief Judge Steven J. McAuliffe.

CIVIL RIGHTS   1983: PRISONERS

1/07/08 Peterson v. Coplan, Former Warden, N.H. State Prison, et al.

Case No. 05-cv-55-PB, Opinion No. 2008 DNH 002

Plaintiff alleged that defendants, all of whom are correctional and medical staff at New Hampshire State Prison, violated his Eighth Amendment right to be free from cruel and unusual punishment by exhibiting deliberate indifference to his serious medical and mental health needs.  The court granted summary judgment to defendants because plaintiff failed to create a genuine dispute over whether defendants’ treatment decisions rose to the level of deliberate indifference.  23 pages.  Judge Paul Barbadoro.

1/18/08 Breest v. NH Attorney General

Case No. 06-cv-361-SM, Opinion No. 2008 DNH 012

Plaintiff, Robert Breest, was convicted of murder in state court more than 30 years ago.  After the state superior court denied his request to perform (at his own expense) a third round of DNA testing on evidence collected from under the victim’s fingernails, Breest brought this   1983 suit against the New Hampshire Attorney General.  Breest asserts that the two prior genetic tests yielded inconclusive results and says that, by denying him the opportunity to conduct further, more refined DNA testing (i.e., by denying him access to the relevant evidence), the State is denying him due process.  The State moved to dismiss, asserting Breest failed to state a viable constitutional claim.  The court disagreed, concluding that while the contours and reach of the right remain imprecise, there is a constitutionally protected right to post-conviction access to genetic material for DNA testing purposes.  Motion to dismiss denied.  19 pages.  Chief Judge Steven J. McAuliffe. 

1/22/08 De Angelis v. Beaudoin, et al.

Case No. 04-cv-456-SM, Opinion No. 2008 DNH 013

Plaintiff, a former pre-trial detainee at the Hillsborough County House of Corrections (also known as  Valley Street ), brought suit alleging that he had been subjected to incidents of excessive force, unsanitary conditions of confinement, and retaliation.  Defendants moved for summary judgment.  And, because plaintiff failed to object, the court accepted as true and undisputed defendants’ statement of material facts.  Given that undisputed record, the court granted defendants’ motion for summary judgment, concluding that plaintiff’s constitutional rights had not been violated while he was housed at Valley Street.  25 pages.  Chief Judge Steven J. McAuliffe.

1/15/08 Reid v. Strafford County DOC, et al.

Case No. 06-cv-182-SM, Opinion No. 2008 DNH 008

Plaintiff, a former pre-trial detainee at the Strafford County House of Corrections, filed this suit alleging, among other things, that corrections officers subjected him to involuntary servitude, deprived him of his First Amendment rights, and subjected him to cruel and unusual forms of punishment.  Defendants moved for summary judgment.  The court granted defendants’ motion, holding that several of plaintiff’s claims were frivolous (e.g., cruel and unusual punishment based on defendants’ alleged failure to turn off a light near plaintiff’s cell at night).  As to the remaining claims, the court held that defendants were entitled to judgment as a matter of law.  7 pages.  Chief Judge Steven J. McAuliffe.

1/24/08 Lang v. Gordon, et al.

Case No. 07-cv-066-SM, Opinion No. 2008 DNH 014

The defendants’ motion to dismiss for failure to exhaust administrative remedies was denied because: (1) the plaintiff’s failure to name each individual defendant in his underlying grievances did not render remedies against those defendants unexhausted, because prison regulations do not require an inmate to specifically name each individual involved in the incident he is grieving; and (2) the defendants failed to produce evidence to support their assertion that the plaintiff had bypassed the first two steps of the grievance process.  9 pages.  Chief Judge Steven J. McAuliffe.

1/24/08 Cabrera v. LeVierge, et al.

Case No. 07-cv-040-SM, Opinion No. 2008 DNH 015

The defendants’ motion to dismiss for failure to exhaust administrative remedies was denied because the plaintiff’s grievance form, filed approximately nine months after he left the defendants’ facility, was not out of compliance with applicable regulations, which place no time limit on the filing of a grievance.  15 pages.  Chief Judge Steven J. McAuliffe.

1/24/08 Pierce v. Hillsborough County DOC

Case No. 06-cv-422-SM, Opinion No. 2008 DNH 016

The defendants’ motion to dismiss for failure to exhaust administrative remedies was granted with respect to an incident that the plaintiff never mentioned in any grievance form, but was otherwise denied because: (1) the plaintiff’s failure to name each individual defendant in his underlying grievances did not render remedies against those defendants unexhausted, because prison regulations do not require an inmate to specifically name each individual involved in the incident he is grieving; and (2) the defendants failed to produce evidence to support their assertion that the plaintiff had bypassed the first two steps of the grievance process.  17 pages.  Chief Judge Steven J. McAuliffe.

CIVIL RIGHTS    1983 AND 1985

1/15/08 Giroux v. Town of Danbury, et al.

Case No. 06-cv-250-PB, Opinion No. 2008 DNH 006

Plaintiff brought claims under 42 U.S.C.    1983 and 1985(d) against local police officers for false arrest, failure to facilitate a timely judicial determination of probable cause, and violation of his First Amendment rights.  Plaintiff also brought supplemental state law claims of intentional and negligent infliction of emotional distress.  The court granted summary judgment on plaintiff’s false arrest claim because there was probable cause for plaintiff’s arrest, and the court granted summary judgment on plaintiff’s First Amendment claim because plaintiff had not presented sufficient evidence to support his claim.  The court gave defendants 30 days to supplement their motion on plaintiff’s timely judicial determination of probable cause claim and deferred ruling on plaintiff’s state law claims.  23 pages.  Judge Paul Barbadoro.

EMPLOYMENT DISCRIMINATION

1/8/08   Gary Dolan v. SunGard Securities Finance, LLC and Global Compliance Services, Inc.

Case No. 06-cv-43, Opinion No. 2008 DNH 003

Gary Dolan, proceeding pro se, brought suit against his former employer, SunGard, and a company, Global, that provided employment-related services to SunGard.  Dolan alleged that SunGard discriminated against him based on his gender and retaliated against him because of his complaints, in violation of Title VII and New Hampshire law.  He also alleged wrongful discharge, breach of the implied covenant of good faith and fair dealing, violation of RSA 275:56, negligent and intentional infliction of emotional distress, misrepresentation, fraud, and violation of the Equal Pay Act.  The defendants moved for summary judgment.  SunGard moved to exclude parts of Dolan’s affidavit, which was granted in part, and Dolan moved to exclude some of the evidence submitted by SunGard, which was granted for purposes of summary judgment.  The court granted summary judgment in favor of Global and granted summary judgment in SunGard’s favor on some but not all of Dolan’s claims.  46 pages.  Judge Joseph A. DiClerico, Jr.

FEDERAL STATUTES (ADA)

1/16/08 Abbott v. Salem, New Hampshire, et al.

Case No. 05-cv-127-SM, Opinion No. 2008 DNH 009

A hearing impaired plaintiff brought ADA claims against a municipality and several of its police officers, as well as a private firm providing security at a mall, for injuries resulting from her arrest and removal from the mall.  Summary judgment was granted to the security company, based upon the plaintiff’s admissions that none of the company’s employees ever had any contact with her.  Summary judgment was also granted to the municipal defendants because the undisputed factual record demonstrated that if the ADA imposed any duty upon the officers to provide effective communication, they met that duty, based upon the plaintiff’s admissions that she understood, yet knowingly disobeyed police orders to leave a store in the mall.  18 pages.  Chief Judge Steven J. McAuliffe.

FORFEITURE

1/17/08 United States of America v. Portions of $3,300,333.02 More or Less in Proceeds from the Sale of the Lakes Region Greyhound Park

Case No. 06-cv-329-JD, Opinion No. 2008 DNH 010

Denise Hart, a claimant to a portion of proceeds from a sale of property seized by the United States, brought a motion to dismiss the claims of Kenneth and Lisa Hart.  Denise Hart argued that Kenneth and Lisa Hart did not have standing to bring a claim and that Res Judicata barred their claim.  The court determined that Denise Hart’s claim to the proceeds did not overlap with nor affect Kenneth’s and Lisa’s claim and that Denise Hart was contesting Kenneth’s and Lisa’s claim on behalf of another claimant.  Therefore, the court held that Denise Hart had no standing to bring a motion to dismiss because prudential concerns limit a party’s ability to bring a claim by raising another person’s legal rights.  Denise Hart’s motion to dismiss was denied.  7 pages.  Judge Joseph A. DiClerico, Jr.   

HABEAS CORPUS

1/28/08 Blackmer v. Warden, Northern N.H. Correctional Facility

Case No.  05-cv-340-PB, Opinion No. 2008 DNH 017

Petitioner sought habeas corpus relief alleging overlapping grounds for relief that fall into six categories:  1) speedy trial, 2) claims relating to a unilateral conspiracy theory, 3) prosecutorial misconduct, 4) right to counsel and ineffective assistance of counsel, 5) Eighth Amendment, and 6) defective indictment.  The court granted summary judgment on all of petitioner’s claims because they were either procedurally defaulted, did not involve a state court decision that was contrary to or an unreasonable application of federal law, or meritless.  23 pages.  Judge Paul Barbadoro.

1/28/08 Shaneyfelt v. Commissioner, N.H. Dep’t of Corr.

Case No. 06-cv-263-PB, Opinion No. 2008 DNH 018

Petitioner sought habeas corpus relief alleging that: (1) the trial court erred by permitting the state to amend the indictment on the first day of trial; and (2) trial counsel rendered ineffective assistance by failing to object to the prosecution’s improper  golden rule  argument, failing to object to the prosecution’s improper expression of personal belief in petitioner’s guilt during closing arguments, and denying petitioner the opportunity to participate actively in jury selection.  The court reviewed the first claim de novo, granting summary judgment to the Commissioner because the amendment did not alter an element of the crime with which petitioner had been charged and did not prejudice petitioner’s defense.  The court reviewed the ineffective assistance claims under AEDPA deference, granting summary judgment to the Commissioner because the state court reasonably decided that, as to each allegation, counsel did not render ineffective assistance and counsel’s actions did not prejudice petitioner.  23 pages.  Judge Paul Barbadoro.

INTELLECTUAL PROPERTY (UNFAIR COMPETITION)

1/15/08 Beane v. Beane, et al.

Case No. 06-cv-446-SM, Opinion No. 2008 DNH 007

Plaintiffs asserted a Lanham Act violation based upon the defendants’ alleged misrepresentation to third parties that the defendants owned certain intellectual property.  The court directed plaintiffs to show cause why their false designation of origin claim should not be dismissed, given that a patent is neither a good nor service for purposes of the Lanham Act.  6 pages.  Chief Judge Steven J. McAuliffe.

PRISONER - CIVIL RIGHTS - RETALIATION - EQUAL PROTECTION

1/31/08 Dennis A. Smith v. Warden, New Hampshire State Prison

Case No. 05-cv-374-JD, Opinion No. 2008 DNH 028

Dennis A. Smith, a pro se inmate, brought suit alleging that he was transferred from the New Hampshire State Prison to a prison in Texas in retaliation for his lawsuit against the warden and the manager of the special housing unit at the prison and that he was being treated differently than other inmates.  The parties moved for summary judgment.  The court determined that Smith could not show that his transfer was retaliatory nor show that a triable issue existed as to that claim because his disciplinary problems at the New Hampshire State Prison supported the decision to transfer him.  With respect to his equal protection claim, the court held that Smith was not similarly situated to the Texas prisoners with whom he was incarcerated because New Hampshire law governed Smith’s sentence.  The court also determined that the policy of transferring inmates to other prisons, where they were subject to the rules and regulations of the receiving facility, served a legitimate penological purpose.  Summary judgment was granted in favor of the defendants.  22 pages.  Judge Joseph A. DiClerico, Jr.

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