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Bar News - November 16, 2012


US District Court Decision Listing: October 2012

* Published

CIVIL RIGHTS (ß 1983)
10/15/12
Carla Gericke v. Weare Police Department, et al.
Case No. 11-cv-231-SM, Opinion No. 2012 DNH 184

Plaintiff was arrested for disobeying a police officer. She was subsequently charged with that crime, as well as obstruction and unlawful wiretapping (for having purportedly video-taped police officers during a traffic stop). After all charges against her were dropped, she filed this action, alleging that, by charging her with violating the Stateís wiretapping statute, defendants violated her First Amendment freedoms. Defendants moved for summary judgment, asserting that they were entitled to qualified immunity. The court denied that motion, concluding that defendantsí entitlement to qualified immunity turned on genuinely disputed material facts - including whether plaintiff was peacefully recording their actions, or whether she was being disruptive. 29 pages. Judge Steven J. McAuliffe.


CRIMINAL LAW; FOURTH AMENDMENT
10/29/12
United States of America v. Jonathan Tanguay
Case No. 11-cr-173-JL, Opinion No. 2012 DNH 187

The defendant moved to suppress purported child pornography, allegedly seized from his computer pursuant to a search warrant, which was procured based on the account of a witness who claimed to have seen such material there when he went to the defendantís home for a sexual encounter. The defendant argued that the warrant had been procured through intentional or reckless material omissions, particularly as to the witnessís criminal and mental health history. Following an evidentiary hearing, the court found that certain information--particularly, the witnessís prior conviction on a felony charge of forging a prescription--was intentionally or recklessly omitted from the warrant application but ruled that, even had that information been included, the application still would have demonstrated probable cause. In reaching this conclusion, the court relied on the facts that the witness voluntarily came forward with his account of the defendantís criminal activity, which did not implicate the witness, and submitted to an in-person, recorded interview with the police, as well as the fact that, based on the evidence received at the hearing, the witness risked significant personal embarrassment by revealing his sexual relationship with the defendant. 48 pages. Judge Joseph N. Laplante.


FEDERAL TORT CLAIMS ACT
10/16/12
Daniel Gorman v. United States of America
Case No. 11-cv-538-SM, Opinion No. 2012 DNH 186

Plaintiff was injured when he was struck by a vehicle driven by an employee United States Postal Service ("USPS"). He filed a timely administrative claim with the USPS but, when he was unable to adequately document his medical expenses (because he was still undergoing treatment), he purported to "withdraw" that claim but also reserved the right to "supplement" it. After he submitted the requested medical records, the USPS denied his claim, saying that: (1) he withdrew his original administrative claim and none was currently pending; and (2) the "supplemental" materials he submitted were not provided within the relevant limitations period. Plaintiff then filed this action under the Federal Tort Claims Act. The government moved to dismiss, asserting that he failed to exhaust available administrative remedies. The court denied the governmentís motion, without prejudice, and directed the parties to submit additional briefing on issues related to the alleged withdrawal of administrative claims. 10 pages. Judge Steven J. McAuliffe


REMAND
10/16/12
Kaitlyn Peabody v. Wal-Mart Stores, Inc., et al.
Case No. 12-cv-209-SM, Opinion No. 2012 DNH 181

Former employee sued Wal-Mart Stores and one of its store managers in state court for wrongful termination and gender discrimination under state law. Defendants removed the case to federal court, invoking the courtís diversity jurisdiction. Plaintiff moved for remand. The court granted the motion, finding that removal was improper because one of the defendants - the store manager - is a citizen of New Hampshire and plaintiff did not waive the defect. See 28 U.S.C. ß 1441(b)(2). 2 pages. Judge Steven J. McAuliffe


SOCIAL SECURITY
10/11/12
Proulx v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 11-cv-496-PB, Opinion No. 2012 DNH 180

Proulx moved to reverse or remand the Commissionerís decision to deny her application for Social Security benefits, arguing that the ALJ failed to properly evaluate the expert medical evidence. After reviewing the record, the court denied Proulxís motion. The record includes substantial evidence to support he ALJís decision to discount the opinion of one treating physician and afford great weight to the opinions of another treating physician and a consulting physician. The court concluded that the ALJ properly weighed the conflicting medical evidence and provided "good reasons" for the weight he afforded to each medical source opinion. 18 pages. Judge Paul J. Barbadoro.


10/9/12
Dillon v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 11-cv-328-PB, Opinion No. 2012 DNH 179

Dillon appealed the Commissionerís denial of his applications for disability insurance and Supplemental Security Income benefits. Specifically, he claimed that substantial evidence does not support the ALJís decision that his mental impairments were not disabling. He challenged the weight given to the medical evidence in the record. After reviewing the record, the court denied Dillonís motion to reverse or remand the Commissionerís decision. The court concluded that substantial evidence in the record supported the ALJís treatment of the medical evidence. 28 pages. Judge Paul J. Barbadoro.


10/31/12
Susan L. Gould v. Michael J. Astrue, Commissioner, Social Security Administration
Case No. 11-cv-485-SM, Opinion No. 2012 DNH 182

Claimant appealed the denial of her application for disability benefits, asserting that the administrative law judge (ALJ) erred in several respects. The court found no reversible error. The court held that the ALJís failure to find a severe mental impairment was harmless because he proceeded through the remaining steps of the analysis and considered the effects of claimantís mental impairment on her functional capacity. In addition, the court found that the ALJ sufficiently explained why claimantís allegations of disabling pain were not credible and his credibility determination was supported by substantial evidence. The court also held that substantial evidence supported the ALJís assessment of the treating physicianís opinion. 20 pages. Judge Steven J. McAuliffe.

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