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Bar News - September 19, 2008

US District Court Decision Listing August 2008

* Published


8/14/08 Joseph Vaillancourt, a/k/a Bryan Bernard, v. Bernadette Campbell, Celia Englander,
Brett Mooney, and Donna Timulty
Case No. 06-cv-438-JD, Opinion No. 2008 DNH 156

As allowed on preliminary review, the plaintiff, who incarcerated at the New Hampshire State Prison, brought claims under Title II of the Americans with Disabilities Act ("ADA") and 42 U.S.C. § 1983, alleging that he was denied access to prison services and benefits because of his disabilities and that he was denied adequate medical care. The defendants’ motion for summary judgment was granted as to the § 1983 claim because Vaillancourt failed to show that the defendants were deliberately indifferent to his serious medical needs. The motion was also granted on the ADA claim because Vaillancourt failed to show that he was disabled within the meaning of the ADA. 9 pages. Judge Joseph A. DiClerico, Jr.

ATTORNEYS’ FEES, 42 U.S.C. § 1988

8/12/08 Planned Parenthood of Northern New England, Concord Feminist Health Center, Feminist
Health Center of Portsmouth, and Wayne
Goldner, M.D., v. Kelly Ayotte, Attorney General
Case No. 03-cv-491-JD, Opinion No. 2008 DNH 155

The parties litigated the constitutionality of New Hampshire’s Parental Notification Prior to Abortion Act, which resulted in a declaratory judgment and injunction issued in favor of the plaintiffs. The United States Supreme Court vacated the judgment and remanded the case for consideration of the intent of the New Hampshire legislature and to determine whether a more limited remedy would be possible. The Court of Appeals continued the injunction. Before the lower courts considered the mandate from the Supreme Court, the legislature repealed the Act, and the case was dismissed as moot. The plaintiffs sought an award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, and the State objected, arguing that the plaintiffs were not prevailing parties. The court concluded that the plaintiffs had succeeded on significant issues in the case by achieving a ruling that the Act was unconstitutional and an injunction that barred enforcement. Therefore, the plaintiffs were prevailing parties for purposes of § 1988. 21 pages. Judge Joseph A. DiClerico, Jr.


8/6/08 Christine R. Mullen v. Earl L. Kalil, Jr.
Case No. 07-cv-372-PB, Opinion No. 2008 DNH 137

Christine Mullen sought review of a decision of the U.S. Bankruptcy Court that rejected her claim for breach of fiduciary duty against her ex-husband and former attorney, Earl Kalil, Jr. The bankruptcy court found that Mullen was not able to state her claim for breach of fiduciary duty because she failed to demonstrate that she suffered compensatory damages. On appeal to the U.S. District Court for the District of New Hampshire, Mullen argued that the bankruptcy court’s decision should be overturned on the grounds that her transactions with Kalil were voidable at her election because Kalil engaged in them despite that his doing so presented an unwaivable conflict of interest. After finding that rescission was not a possible remedy in the case and that Mullen failed to show monetary damages, the district court denied her claim. Additionally, the district court determined that Mullen failed to show that the bankruptcy court’s judgments with regard to the adequacy of consideration paid in certain transactions were clearly erroneous. 22 pages. Judge Paul Barbadoro.


8/5/08 John R. Griffin, Jr. v. Town of Whitefield, Richard
Brown, Shawn White, and Judith Ramsdell
Case No. 07-cv-243-JL, Opinion No. 2008 DNH 131

Prior to filing his federal complaint, the pro se plaintiff had sued the Town of Whitefield and several of its employees in Coos County Superior Court, alleging various injuries related to his arrest and prosecution in 2004. Prior to trial, the superior court dismissed on the merits. The plaintiff later brought the same complaint in federal court alleging the same claims against the same defendants. The defendants moved for summary judgment on the basis of res judicata. At the hearing on the motion, the plaintiff argued that while his claims very well may be barred by the doctrine of res judicata, the court should not apply the doctrine due to the serious nature of the conduct alleged in his complaint. Rejecting the plaintiff’s unsupported argument, the court granted summary judgment to the defendants. 8 pages. Judge Joseph N. Laplante.


8/5/08 Vosburgh v. Hillsborough County DOC, et al.
Case No. 07-cv-101-SM, Opinion No. 2008 DNH 133

In a case asserting a claim of excessive force allegedly inflicted on a pre-trial detainee, defendant was not entitled to summary judgment based on theories of de minimis injury and qualified immunity. 25 pages. Chief Judge Steven J. McAuliffe.

8/6/08 Cabrera v. Hillsborough County DOC, et al.
Case No. 07-cv-40-SM, Opinion No. 2008 DNH 138

The plaintiff in this excessive force claim produced sufficient evidence to survive defendants’ motion for summary judgment. 20 pages. Chief Judge Steven J. McAuliffe.

8/7/08 Ledger v. LeVierge, et al.
Case No. 06-cv-411-SM, Opinion No. 2008 DNH 140

Defendants were granted summary judgment on plaintiff’s excessive force claim based upon his placement in a "restraint chair," but genuine issues of material fact precluded summary judgment on plaintiff’s claim that he was beaten by jail guards without provocation. 14 pages. Chief Judge Steven J. McAuliffe.

8/28/08 Tom Cossette v. Angela Poulin, Dennis Cox, and Greg Crompton
Case No. 06-cv-162-JL, Opinion No. 2008 DNH 162*

Cossette, an inmate at the New Hampshire State Prison, Northern Correctional Facility, brought a § 1983 civil rights action against Poulin, the prison librarian, and other corrections officials, asserting that he was impermissibly terminated from his position as a prison library aide in retaliation for exercising his First Amendment rights by providing a written statement to another inmate planning to sue Poulin for overcharging him for photocopies. The defendants’ motion for summary judgment was granted on the grounds that Cossette’s exercise of his First Amendment rights did not involve a matter of public concern, and thus was insufficient as a matter of law to sustain a First Amendment retaliation claim. 21 pages. Judge Joseph N. Laplante.


8/7/08 Industrial Communications and Electronics, Inc., RCC Atlantic, Inc., U.S.C.O.C. of New
Hampshire RSA #2 d/b/a U.S. Cellular, v.
Town of Alton, New Hampshire
Case No. 07-cv-82-JL, Opinion No. 2008 DNH 136

During the course of discovery, plaintiffs’ counsel made over several bankers’ boxes of documents available to the defendant for review at his office. Included within these boxes --containing thousands of pages of documents--was a three-page letter that the plaintiffs’ former counsel had written to the plaintiffs advising them on one of their claims. The defendant’s counsel flagged the document with a note requesting a copy "unless privilege is claimed." After plaintiffs provided copies of this letter to the defendant, and the defendant submitted it to the court in support of their motion for summary judgment, plaintiffs’ counsel sought return of the letter under the attorney-client privilege. The defendant asked the court to determine what effect, if any, counsel’s disclosure had on his client’s claimed privilege. Upon consideration of the relevant factors, the court held that any privileged was waived by counsel’s inadvertent disclosure. 10 pages. Judge Joseph N. Laplante.


8/29/08 Nicole L’Etoile v. New England Finish Systems, Inc.
Case No. 06-cv-00390-JL, Opinion No. 2008 DNH 163

The employer moved for summary judgment on its former employee’s claims for (1) employment discrimination, in the form of a series of layoffs culminating in a termination, (2) hostile environment, and (3) retaliation all under Title VII of the Civil Rights Act of 1964. The court granted the motion as to layoffs that occurred outside of the applicable limitations period, treating them as discrete events, but denied it as to the hostile environment claim, since it relied in part on conduct occurring inside the limitations period. The court also denied the motion insofar as it argued that (1) the hostility was not sufficiently severe or pervasive as a matter of law, given the employee’s testimony that her foremen often cursed women and demeaned their abilities, and (2) that the employee could not show discriminatory or retaliatory animus, where (a) the employee testified that the employer’s stated concerns with her performance were never communicated to her before the termination, (b) her foremen, one of whom participated in the decision to fire her, had often made sexist remarks, (c) the termination had occurred within three weeks of her first complaint about her treatment, and (d) the employer had articulated shifting reasons for the termination. 23 pages. Judge Joseph N. Laplante.


8/3/08 Allen T. Belton v. Larry Blaisdell
Case No. 04-cv-270-JL, Opinion No. 2008 DNH 130

The habeas corpus petitioner sought reconsideration of the court’s denial of his claims of ineffective assistance of counsel, particularly that his appellate lawyer failed to raise the argument that the petitioner’s initial arrest tainted his second arrest the next day. Denying reconsideration, the court ruled that (1) because that argument was never made in the superior court, appellate counsel could not be faulted for failing to raise it on appeal and (2) in any event, the argument had no merit, because the statements made during the first arrest (which were used, together with other, untainted evidence, in getting the warrant for the second arrest) were exculpatory. 3 pages. Judge Joseph N. Laplante.

8/5/08 Starr v. Warden, Northern NH Correctional Facility
Case No. 07-cv-311-SM, Opinion No. 2008 DNH 132

Summary judgment was granted to the State on a petition for habeas corpus in which the petitioner asserted that his incarceration is unconstitutional because New Hampshire’s truth-in-sentencing law, under which he was sentenced, was enacted without adequate notice to the public. 13 pages. Chief Judge Steven J. McAuliffe.

8/6/08 Pelletier v. Warden, NH State Prison
Case No. 05-cv-417-SM, Opinion No. 2008 DNH 139

Summary judgment was granted to the State in a habeas corpus action asserting multiple grounds for relief. Most notably, the court rejected petitioner’s claim that his conviction was unconstitutional because the trial court took evidence on thirty-two counts but dismissed twenty-seven of them before the case went to the jury. 41 pages. Chief Judge Steven J. McAuliffe.

8/6/08 Pandolfi v. Director, RI Adult Correctional Facility
Case No. 06-cv-165-SM, Opinion No. 2008 DNH 135

Following his conviction in state court for aggravated felonious sexual assault and two counts of sexual assault upon a fourteen-year-old girl, petitioner sought federal habeas corpus relief. The court granted the State’s motion for summary judgment, concluding it was entitled to judgment as a matter of law as to petitioner’s claims that, among other things, the state trial judge made impermissible "forensic and scientific findings," petitioner’s trial and appellate counsel were ineffective, the prosecutor engaged in misconduct, and petitioner’s sentence is vindictive and unsupported by the evidence. 22 pages. Chief Judge Steven J. McAuliffe.

8/26/08 Campney v. Bare Hill Correctional
Case No. 06-cv-353-SM, Opinion No. 2008 DNH 157

In this habeas corpus proceeding, the State was not entitled to summary judgment on grounds of procedural default, but was entitled to judgment as a matter of law on the merits of all but two of petitioner’s grounds for relief. The two grounds that remain assert a violation of the Interstate Agreement on Detainers and ineffective assistance of appellate counsel. 31 pages. Chief Judge Steven J. McAuliffe.


8/14/08 James McGinn v. NH State Prison,
Interim Warden
Case No. 07-cv-00088-JL, Opinion No. 2008 DNH 144

The plaintiff filed a pro se habeas corpus petition in federal court on March 28, 2007, nearly four-and-a-half years after his state court conviction became final. The respondent moved for summary judgment on the basis of AEDPA’s one-year statute of limitations. The plaintiff did not dispute that his petition was filed outside the statutory period, but argues that due to his lack of legal training and unfamiliarity with AEDPA’s statute of limitations, he was entitled to equitable tolling. Based on Lattimore v. Dubois, 311 F.3d 46, 55 (1st Cir. 2002), the court rejected this argument and dismissed the petition as untimely. 10 pages. Judge Joseph N. Laplante.


8/14/08 Mark and Linda Lessard v. Wilton-Lyndeborough Cooperative School District
Case No. 06-cv-423-JD, Opinion No. 2008 DNH 154

The Lessards sought review under the Individuals with Disabilities in Education Act ("IDEA") of the decision of the New Hampshire Department of Education that approved the Independent Education Plan ("IEP") and placement of the Lessards’ daughter by the Wilton-Lyndeborough Cooperative School District. The Lessards argued that the District committed procedural errors during the IEP process, that the proposed IEP was not appropriate for their daughter’s needs, and that her placement at Crotched Mountain Rehabilitation Center also was not appropriate. The court concluded that one of the alleged procedural violations had not been exhausted, another was insufficiently developed for review, and that the remaining issues had not been shown to be violations of the IDEA. With respect to the substantive issues raised, the appropriateness of the IEP and placement, the court concluded, based in part on the decision in Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 518 F.3d 18 (1st Cir. 2008), that the District had acted within the requirements of the IDEA. The Department’s decision was affirmed. 26 pages. Judge Joseph A. DiClerico, Jr.


8/15/08 Goss v. MAN Roland, et al.
Case No. 03-cv-513-SM, Opinion No. 2008 DNH 146

In a case in which direct infringement of the plaintiff’s patent was established prior to trial, the court granted defendants’ motion in limine to preclude the plaintiff from claiming, or introducing evidence relevant to, contributory infringement and inducement of infringement. 6 pages. Chief Judge Steven J. McAuliffe.

8/15/08 Goss v. MAN Roland, et al.
Case No. 03-cv-513-SM, Opinion No. 2008 DNH 147

Before trial on legal and equitable defenses to patent infringement and damages, the court granted the infringing defendants’ motion in limine to preclude the plaintiff from recovering damages based on the economic value of the patented invention to customers who purchased printing presses from the defendant containing the invention, thus limiting the plaintiff to its own lost profits. 8 pages. Chief Judge Steven J. McAuliffe.


8/11/08 Gary Kearney, Christopher R. Mulleavey and Kathleen Mulleavey v. Brenda Elias and William H. Constant
Case No. 07-cv-149-JL, Opinion No. 2008 DNH 143

After purchasing residence from defendant Brenda Elias, the plaintiffs sued her and her husband, real estate agent William H. Constant, for failing to disclose, in violation of the Residential Lead-Based Paint Hazard Reduction Act of 1982, 42 U.S.C. § 4852d, the existence of a lead paint rehabilitation order issued by the New Hampshire Department of Health and Human Services. The court granted summary judgment to the plaintiffs on their statutory failure-to-disclose claim based on Elias’s failure to acknowledge or provide a copy of the rehabilitation order to the plaintiffs prior to the sale. The court denied the plaintiff’s motion as to Elias’ husband, defendant Constant, because he did not act as an agent (as defined by the Act) with respect to the transaction. The court rejected the defendants’ arguments that the plaintiffs could not recover because they, too, had subsequently sold the property to a third party without disclosing the pending rehabilitation order because this argument raised factual issues as to proximate and intervening cause properly decided by the jury. 22 pages. Judge Joseph N. Laplante.


8/21/08 Elizabeth A. Ryan v. Michael J. Astrue, Comm’r, Soc. Sec. Admin.
Case No. 08-cv-17-PB, Opinion No. 2008 DNH 148

Elizabeth Ryan, who suffers from Huntington’s Disease, sought social security disability benefits. The administrative law judge ("ALJ") denied her claim, finding that she was not disabled as of the last date that she was eligible for a benefits award. Ryan appealed. The court reversed and remanded the ALJ’s ruling. Pursuant to Social Security Ruling 83-20, ordinarily an ALJ should consult a medical advisor when his determination of the onset date of a disability is based on inference. The court found that there was no valid reason why Social Security Ruling 83-20 should be limited to cases in which the ALJ makes a determination of disability before addressing the onset of disability. 21 Pages. Judge Paul Barbadoro.

8/6/08 Brouillard v. SSA
Case No. 07-cv-367-SM, Opinion No. 2008 DNH 134

Claimant appealed the denial of her application for Social Security disability insurance benefits. After reviewing the record, the court remanded the matter to the administrative law judge, concluding that he failed to adequately address claimant’s obesity and its likely adverse impact on her ability to walk and climb stairs and he did not explain the basis for rejecting the medical opinions of one of claimant’s treating physicians. 15 pages. Chief Judge Steven J. McAuliffe.

8/28/08 Moriarty v. SSA
Case No. 07-cv-342-SM, Opinion No. 2008 DNH 158

Claimant appealed the denial of his application for Social Security disability insurance benefits. The court remanded the matter for further proceedings before the administrative law judge, concluding that he failed to follow the proper procedure in determining whether claimant was disabled prior to his date last insured. Specifically, the court held that, in case like this, the ALJ must first determine whether the claimant is presently disabled. If he is disabled, the ALJ must then determine when his impairment(s) actually became disabling - an inquiry that typically requires the assistance of a medical expert. 21 pages. Chief Judge Steven J. McAuliffe.

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