Bar News - February 18, 2015
US District Court Decision Listing
CIVIL RIGHTS - § 1983
human v. Anthony F. Colarusso,
Case No. 13-cv-296-SM, Opinion No. 2015 DNH 012
In 2008, pro se plaintiff conducted several protests against what he considered police corruption. On one such occasion, he erected a table and large placard on a town sidewalk, at the intersection of two streets. After giving plaintiff several opportunities to relocate his display to another area (which he declined), police arrested him for disturbing the peace. Plaintiff was convicted in district court but, on appeal and trial de novo, he was acquitted in superior court. He then brought suit against the Dover chief of police, in his official capacity, alleging that he had been the victim of retaliatory prosecution in violation of the First Amendment, and malicious prosecution in violation of the Fourth Amendment. The court granted defendant’s motion for summary judgment, concluding that plaintiff’s constitutional claims failed because his arrest was amply supported by probable cause. 12 pages. Judge Steven J. McAuliffe.
Matthew Phillips v. NH Circuit
Court, 8th Circuit, et al.
Case No. 13-cv-313-JL
The plaintiff sought to recover for the defendants’ failure to appoint a mental health professional to assess his ability to participate in a series of hearings in the N.H. Circuit Court. This, he claimed, constituted a refusal to provide a reasonable accommodation for his mental disabilities, in violation of the Americans with Disabilities Act and the Rehabilitation Act. On the defendants’ motion, the court granted summary judgment in their favor, holding that they could be held liable for failing to provide an accommodation for the plaintiff only if the plaintiff had requested one, which he had not done. 4 pages. Judge Joseph N. Laplante.
FEDERAL RULES OF CIVIL
PROCEDURE, RELATION BACK
Graham v. Church
Case No. 14-cv-171-LM, Opinion No. 2015 DNH 013
In this case, the plaintiff sued to recover for physical injuries she claims to have suffered as a result of not being given her prescribed anti-seizure medication while she was detained in the Rockingham County House of Corrections. The court denied her motion to add the jail’s medical-care contractor as a defendant because she was unable to establish that her untimely claims against the contractor related back to her original complaint, due to her failure to identify a mistake, cognizable under the Federal Rules, that prevented her from making a timely claim against the medical-care provider. 18 pages. Judge Landya B. McCafferty.
McElreavy v. Wells Fargo Bank
Case No. 14-cv-298-JL
In this action to enjoin a foreclosure sale, the court granted the defendant’s motion to dismiss the action in part and denied it in part. The court held that the plaintiff had stated a cognizable claim that an assignment of her mortgage to the defendant from the original mortgagee was invalid because the latter entity no longer held the mortgage at the time of the assignment. The court also held, however, that the plaintiff (1) did not have standing to argue that the assignment violated the terms of the trust for which the defendant was serving as trustee, and (2) could not recover for the defendant’s refusal to halt foreclosure proceedings while the plaintiff’s application for a loan modification was pending. 3 pages. Judge Joseph N. Laplante.
East Coast Sheet Metal v.
Case No. 12-cv-517-LM, Opinion No. 2015 DNH 011
In a patent-infringement case involving computer-assisted drawing (CAD) technology as applied to the creation of manufacturing blueprints for circulations systems in buildings, the court granted summary judgment to the defendant because the plaintiff’s subject matter was an unpatentable abstract idea and because the accused products did not infringe the claims of the patents-in-suit. 48 pages. Judge Landya B. McCafferty.
Suzanne Borsody v. SSA
Case No. 13-cv-298-JL, Opinion No. 2015 DNH 005
A claimant appealed a ruling of an Administrative Law Judge of the Social Security Administration that the claimant was not disabled by her carpal tunnel syndrome. Reversing the decision, the court ruled that the ALJ had erred by failing to address the opinion of a state agency physician that the claimant’s dominant hand was virtually useless, seemingly disqualifying her from the jobs identified as available to her. 6 pages. Judge Joseph N. Laplante.
Andrew D. Collard v. Carolyn W.
Colvin, Acting Commissioner,
Social Security Administration
Case No. 13-cv-446-SM, Opinion No. 2015 DNH 001
Claimant moved to reverse or vacate the Acting Commissioner’s decision denying his applications for Disability Insurance Benefits and Supplemental Security Income. Specifically, claimant asserted that the ALJ failed to properly assess his credibility and improperly determined his residual functional capacity (“RFC”). The court disagreed, concluding that the ALJ’s credibility assessment and RFC determination were both supported by substantial evidence. Motion to reverse or vacate the Commissioner’s decision denied. 19 pages. Judge Steven J. McAuliffe.
John P. Chippendale v. Carolyn
W. Colvin, Acting Commissioner, Social Security Administration
Case No. 14-cv-55-SM, Opinion No. 2015 DNH 008
Claimant moved to reverse or vacate the Acting Commissioner’s decision denying his application for Disability Insurance Benefits. Specifically, claimant asserted that the ALJ failed to properly weigh the medical evidence and improperly determined his residual functional capacity (“RFC”). The court disagreed, concluding that the ALJ’s assessment of the medical evidence and claimant’s RFC were both supported by substantial evidence. Motion to reverse or vacate the Acting Commissioner’s decision denied. 20 pages. Judge Steven J. McAuliffe.
Kayla L. Ellison v. Carolyn W.
Colvin, Acting Commissioner, Social Security Administration
Case No. 14-cv-35-PB, Opinion No. 2015 DNH 009
Claimant sought judicial review of a ruling by the Social Security Administration denying her application for supplemental security income. Specifically, she contended that the ALJ erred in finding that her statements concerning the intensity, persistence, and limiting effects of her symptoms were not credible. The court disagreed, concluding that the ALJ’s credibility assessment was supported by substantial evidence. The court denied claimant’s motion to reverse and granted the Commissioner’s motion to affirm. 9 pages. Judge Paul J. Barbadoro.
TAX; ATTORNEYS’ FEES
United States of America v. Scott
G. Baker and Robyn Baker
Case No. 13-cv-213-PB, Opinion No. 2015 DNH 003
Robyn Baker filed a motion to recover attorneys’ fees as a prevailing defendant in this tax case. In response, the United States argued that the motion should have been denied because its decision to sue Baker was “substantially justified.” The court held that it should have been obvious to the government that its tax liens against Baker’s ex-husband could not apply to her property because the decree transferring the property became effective before the tax liens accrued. Further, the government’s contention that its litigation position was substantially justified was based on an untenable reading of First Circuit precedent and New Hampshire law. As a result, the court granted Baker’s motion for reasonable fees. 5 pages. Judge Paul J. Barbadoro.
TITLE III, AMERICANS WITH
DISABILITIES ACT AND
Colleen Collins, et al. v.
Center and James E. Saunders,
Case No. 13-cv-352-JD, Opinion No. 2015 DNH 015
Colleen Collins, who is deaf, and her sisters, Ruth Collins and Debra Ceriello, brought claims under Titles III and V of the ADA and the Rehabilitation Act, along with state law claims. The plaintiffs alleged that Dr. Saunders and DHMC failed to provide reasonable accommodations for Colleen’s deafness after surgery and retaliated against her by threatening to stop providing treatment when she insisted on an ASL interpreter. The court granted the defendants’ motion for summary judgment on the federal claims because the record showed that Dr. Saunders did provide reasonable accommodation for Colleen’s deafness during their post-surgery meetings and that the DHMC staff did not retaliate against her. The court also granted summary judgment on the state claims due to the plaintiffs’ failure to properly oppose the motion as to those claims. 21 pages. Judge Joseph A. DiClerico, Jr.