Phelan v . Thompson CV-94-104-M 03/12/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Thomas Phelan, Plaintiff, v. Civil N o . 94-104-M Robert Thompson; Arthur Morrill; Robert Berti; Kevin Maes; and Town of Rumney, New Hampshire, Defendants.

O R D E R

The Town of Rumney's motion for summary judgment (document

n o . 41) is granted, it appearing from the undisputed facts that

the Town is entitled to judgment as a matter of law since the

unconstitutional action alleged by the plaintiff was not the

product o f , nor was it "caused in fact" by, the implementation or

execution of a custom, or a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by the

Town's governing officers. See Monell v . Department of Social

Services,

(1978). Respondeat superior is not a

viable legal theory for holding local governmental bodies liable

for the constitutional violations of its employees.

Plaintiff has not articulated any causally linked policy or

custom which might support municipal liability. Plaintiff's argument that the defendant Thompson's own actions constituted

"official policy" or "custom" due to his "high rank" is

necessarily rejected as the facts as pled, if accepted as true,

establish acts of an unauthorized and ultra vires character

unsupported by any official policy or custom of the Town, and to

attribute such acts to the Town for liability purposes would

simply be to impermissibly impose respondeat superior liability

under a different name.

The motion for summary judgment filed by the individual

selectman defendants (document n o . 41) is also granted.

Plaintiff sues the selectmen not in their individual, but in

their official capacities. Such suits under

,

though brought against named individuals are in reality suits

against the municipality. Brandon v . Holt,

(1985).

As discussed, due to the absence of an actionable official policy

or custom motivating the claimed deprivation of constitutional

rights, there can be no municipal liability for defendant

Thompson's alleged conduct.

Conclusion

The motions for summary judgment filed by defendants Town of

Rumney and Selectmen Morrill, Berti and Maes (document n o . 41)

2 are granted. The court has been advised that the case is in all

other respects settled. See Local Rule 41.1

SO ORDERED.

Steven J. McAuliffe United States District Judge March 1 2 , 1996

cc: Robert J. Foley, Esq. Charles H . Riley, Jr., Esq. Robert Y . Murray, Esq. K. William Clauson, Esq. Donald E . Gardner, Esq.

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