Nabatanzi v . Hillsborough, et a l . CV-99-415-M 04/19/01 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Elizabeth M. Nabatanzi, Plaintiff

v. Civil N o . 99-415-M Opinion N o .

Hillsborough County Dept. of Corrections, James O’Mara, Jr., Mark Cusson, David Dionne, Tony Sawyer, Robin Townsend, William Duffy, Alexandra Cristea, Donna Lacerte, and Alan M. Stein, M.D., Defendants

O R D E R

Pro se plaintiff Elizabeth Nabatanzi was, until September of

1999, a detainee of the United States Immigration and

Naturalization Service (“INS”). During a portion of her

detention, she was held at the Hillsborough County House of

Corrections, also known as “Valley Street.” She brings this

action pursuant to

, seeking $9 Million in

damages for alleged violations of her First, Eighth, and

Fourteenth Amendment rights. The Hillsborough County Department

of Corrections and its employees (collectively, the “Municipal

Defendants”) move for summary judgment, saying Nabatanzi’s claims

are barred by res judicata and collateral estoppel. Defendant Alan Stein, M.D., moves to strike the default judgment entered

against him, saying it was improvidently granted since Nabatanzi

failed to properly serve him and, in any event, claiming he has

shown good cause sufficient to warrant striking the default.1

Nabatanzi objects to both motions.

Discussion

Plaintiff originally filed this action in the United States

District Court for the District of Massachusetts. Following an

initial review of the complaint, the court concluded that it

lacked personal jurisdiction over the defendants. Because

plaintiff was, at the time, being detained in New Hampshire and

because her complaint related to alleged constitutional

deprivations that she suffered while in New Hampshire, the matter

was transferred to this court. Unfortunately, the parties did

not request or suggest that the case be consolidated with

plaintiff’s ongoing litigation in this forum, in which she raised

1 Plaintiff’s amended complaint also identifies a second physician - D r . Freeman - as a defendant in this proceeding. Plaintiff has not, however, demonstrated that she ever served Dr. Freeman with a summons or copy of the amended complaint. Consequently, the court lacks personal jurisdiction over him and he is not a party to this litigation.

2 identical claims, based upon the same events, against many of the

same defendants. See Nabatanzi v . N.H. Dept. of Corrections,

Civil Docket N o . 99-180-M (“Nabatanzi I ” ) . 2

Facts

The factual background to this case was described in detail

in the court’s prior orders in plaintiff’s earlier case. See

Nabatanzi I ,

(D.N.H. October 1 7 , 2000); Nabatanzi I ,

(D.N.H. August 2 5 , 2000). Accordingly, the court

recounts only those facts material to the pending motions.

Following what appears to have been a state court conviction

for larceny, plaintiff was incarcerated at the Massachusetts

State Prison at Framingham. When she was released from the

custody of Massachusetts corrections officials, the United States

Immigration and Naturalization Service (“INS”) began deportation

proceedings against her. Plaintiff was taken into INS custody

and transferred to the Hillsborough County House of Correction

2 Municipal Defendants Hillsborough County Department of Corrections, James O’Mara, Jr., David Dionne, and Robin Townsend were all treated as having been properly named and served as defendants in Nabatanzi I.

3 (“Valley Street”). Approximately three months after her arrival

at Valley Street, plaintiff was released on her own recognizance.

None of the claims raised in this case appears to relate to

plaintiff’s original detention at Valley Street.

The record in Nabatanzi I suggests that in early 1999,

plaintiff was ordered deported to her native country of Uganda.

Pending appeal, bail was set at $1500. In March of 1999, when

plaintiff was unable to post the required surety, the INS again

took her into custody. Initially, she was held at the Goffstown

Women’s Prison, which is part of the New Hampshire State Prison

System. Plaintiff remained at Goffstown for approximately two

months. Although she raised various state and federal claims

related to her detention at Goffstown in Nabatanzi I, plaintiff

raises no such claims in this proceeding. On May 4 , 1999, she

was transferred back to Valley Street, where she remained until

September of 1999, when she was released on bail.

In this case, as in her prior case, plaintiff asserts that,

during her second stay at Valley Street, defendants were

deliberately indifferent to her serious medical needs. She also

4 alleges that defendants subjected her to various acts of racial

discrimination, thereby rendering her conditions of confinement

unsanitary and inhumane. Finally, as in her prior case, she at

least alludes to what might be considered state law claims for

defamation, assault and battery, and negligence. Importantly,

all of her federal claims are identical to those previously

raised in Nabatanzi I and relate to precisely the same alleged

incidents relied upon in that earlier case. Accordingly, the

factual details underpinning those claims need not be recounted.

Generally speaking, plaintiff complains of racially

discriminatory transfers between cells, inadequate food and

clothing, and cells that were too cold, all of which made the

conditions of her confinement cruel and unusual, within the

meaning of the Eighth Amendment. She also alleges that she was

denied adequate medical treatment for various ailments and

injuries she claims to have incurred while in custody.

As to defendant Stein, who was not named as a defendant in

Nabatanzi I, plaintiff alleges that he is a medical doctor, “in

charge of medical issues brought to the Medical Department,”

amended complaint at 2 , who failed “to follow-up treatments and

5 examination of federal prisoners, [failed] to provide consistent

care, [failed] to giv[e] necessary medications to plaintiffs,

[and failed] to carry out several [medical] tests.” Amended

complaint, at 6-7. Additionally, plaintiff says that, “the jail

never followed up with her medication regimen she was on at

Goffstown prison,” and she “suffered diarrhea for over 45 days

without medication and blood screening.” Amended complaint, at

12-13. It i s , however, unclear whether plaintiff attributes the

latter incidents of alleged mistreatment to D r . Stein.3

Although Stein was not specifically named as a defendant in

Nabatanzi I, plaintiff raised precisely the same claims in that

case. And, after carefully considering each of those claims in

light of the record evidence, the court concluded that the

medical records revealed that when plaintiff complained of

discomfort or requested medical attention, she was seen by

medical staff at Valley Street, who took appropriate remedial

action. Nabatanzi I,

, at 1 1 . The court held that:

3 Dr. Stein is not an employee of Hillsborough County. Instead, it appears that he was employed by private medical groups that provided services, on a contract basis, to inmates and detainees in the custody of the County.

6 Even charitably construing what appear to be plaintiff’s overstated claims, at the very most it might be argued that defendants were negligent in terms of the medical care that they provided to [her]. Nothing, however, supports plaintiff’s assertion that they were deliberately indifferent to her serious medical needs. Consequently, the individual defendants (in their individual capacities) are entitled to judgment as a matter of law as to that claim.

And, because plaintiff has failed to point to evidence in the record sufficient to support her claim that she suffered any constitutional injury, Hillsborough County is necessarily also entitled to judgment as a matter of law.

After granting the Municipal Defendants’ motion for summary

judgment with respect to all of plaintiff’s federal claims, the

court declined to exercise supplemental jurisdiction over

plaintiff’s state law claims, “[t]o the extent her complaint

raises state law causes of action (a point that is not entirely

clear, as discussed in the court’s prior order).”

at 1 5 .

Discussion

I. Stein’s Motion to Strike Default.

On February 2 9 , 2000, the court (Muirhead, M.J.) ordered

plaintiff “to prepare the necessary summonses for each defendant

in this action and return those summonses to this court within

thirty (30) days of the date of this order.” Document n o . 6, at

7 4. Following the court’s issuance of summonses for each

defendant, see Local Rule 4.3(d)(1)(A), plaintiff was afforded

120 days within which to serve them.

See also Fed. R. Civ.

P. 4 ( m ) . Plaintiff failed to serve any defendant within the time

prescribed and the court dismissed her complaint for want of

prosecution.

Plaintiff then moved to vacate the order of dismissal and

sought additional time within which to complete service. The

court granted her motion, instructing her to serve defendants by

the end of April, 2000. See Document n o . 1 1 . Again, plaintiff

failed to comply. And, again, based largely on her pro se

status, the court afforded her additional time within which to

complete service - this time, until August 1 7 , 2000. See

Document n o . 13 (“In accordance with Federal Rule of Civil

Procedure 4 ( m ) , the case will be dismissed without prejudice on

August 1 7 , 2000, if said return or a motion to extend time to

effect service is not received by that date.”). It was not until

December 4 , 2000, however, that plaintiff finally served

defendant Stein with a summons and copy of the complaint. For

reasons explained in his motion, Stein neglected to file an

8 answer in a timely fashion and the Clerk, apparently unaware of

the fact that Stein was not properly served, entered default

judgment against him.

Because plaintiff failed to properly serve Stein in a timely

fashion (notwithstanding several extensions of the time period

within which to complete such service) and because she was never

granted a further extension of the service deadline, Stein is not

a proper party to this proceeding and the court lacks personal

jurisdiction over him. See, e.g., Dodco, Inc. v . American

Bonding Co.,

(8th Cir. 1993) (“If a defendant

is improperly served, the court lacks jurisdiction over the

defendant.”). Consequently, the default judgment against him was

improvidently entered. It i s , therefore, vacated and all claims

against him are dismissed, without prejudice. See Fed. R. Civ.

P. 4(m) (“If service of the summons and complaint is not made

upon a defendant [within the time prescribed by the court], the

court . . . shall dismiss the action without prejudice as to that

defendant . . . . ” ) .

9 II. Municipal Defendants’ Motion for Summary Judgment.

The Municipal Defendants assert that, in light of the

court’s prior rulings in their favor in Nabatanzi I , principles

of res judicata and collateral estoppel entitle them to judgment

as a matter of law as to all of the claims plaintiff raises in

this proceeding. Although plaintiff has objected, she has not

specifically addressed the Municipal Defendants’ reliance upon

res judicata or collateral estoppel. See generally Plaintiff’s

objection (document no. 43) at 1 . Plaintiff does, however,

concede that this case raises precisely the same issues that were

resolved against her in Nabatanzi I. See

(“Plaintiff filed

the above-captioned matter alleging deliberate indifference to

her medical needs, racial discrimination and unconstitutional

conditions of her confinement during her detention at the above

jail.”). See also Nabatanzi I ,

(D.N.H. October 1 7 , 2000) (characterizing plaintiff’s complaint

as raising two federal claims - deliberate indifference to her

serious medical needs and racial discrimination - and addressing

her claims relating to unsanitary and inhumane conditions of

confinement in the context of her discrimination claim).

10 In cases such as this, in which both the prior suit and

current (possibly precluded) suit were filed in federal court,

federal law governs the preclusive effect given to the earlier

litigation. See Mass. School of Law at Andover, Inc. v . American

Bar Ass’n,

6 , 37 (1st Cir. 1998); Faigin v . Kelly,

7 , 78 (1st Cir. 1999). The doctrine of res judicata

encompasses two related, but nonetheless distinct, legal

principles: claim preclusion and collateral estoppel (also known

as issue preclusion).

The essential elements of claim preclusion are: (1) a final judgment on the merits in an earlier action; (2) an identity of parties or privies in the two suits; and (3) an identity of the cause of action in both suits. Once these elements are established, claim preclusion also bars the relitigation of any issue that was, or might have been, raised in respect to the subject matter of the prior litigation.

The principle of collateral estoppel, or issue preclusion, bars relitigation of any factual or legal issue that was actually decided in previous litigation between the parties, whether on the same or a different claim. When there is an identity of the parties in subsequent actions, a party must establish four essential elements for a successful application of issue preclusion to the later action: (1) the issue sought to be precluded must be the same as that involved in the prior action; (2) the issue must have been actually litigated; (3) the issue must have been determined by a valid and binding final judgment; and (4) the determination of the issue must have been essential to the judgment. An issue may be “actually”

11 decided even if it is not explicitly decided, for it may have constituted, logically or practically, a necessary component of the decision reached in the prior litigation.

Grella v . Salem Five Cent Savings Bank,

6 , 30-31 (1st

Cir. 1994) (citations and internal quotation marks omitted)

(emphasis in original).

A. The Defendants from Nabatanzi I .

With respect to those Municipal Defendants who were also

named as defendants in Nabatanzi I (Hillsborough County

Department of Corrections, O’Mara, Dionne, and Townsend), all of

the elements of claim preclusion are met: (1) a final judgment on

the merits in an earlier action; (2) an identity of parties in

the two suits; and (3) an identity of the causes of action in

both suits. Consequently, plaintiff is precluded from

relitigating the claims that were resolved against her in

Nabatanzi I and those Municipal Defendants are entitled to

judgment as a matter of law.

12 B. The Defendants not Named in Nabatanzi I.

The remaining Municipal Defendants (Cusson, Sawyer, Duffy,

Lacerte, and Cristea) were not parties to Nabatanzi I. S o , the

question presented by their motion for summary judgment is

whether they are entitled to the protections afforded by what is

known as “defensive collateral estoppel.” The Supreme Court has

described defensive collateral estoppel as occurring “when a

defendant seeks to prevent a plaintiff from asserting a claim the

plaintiff has previously litigated and lost against another

defendant.” Parklane Hosiery Co., Inc. v . Shore,

,

326 n.4 (1979).

In Nabatanzi I , plaintiff raised precisely the same

constitutional claims, based upon precisely the same facts

alleged in this proceeding. In that case, after affording

plaintiff a full and fair opportunity to present evidence in

support of her claims, the court concluded that plaintiff was

not: (1) deprived of constitutionally adequate medical care; (2)

subjected to unlawful racial discrimination; or (3) subjected to

constitutionally deficient conditions of confinement at any point

during her detention at Valley Street. As a result, say the

13 remaining defendants, plaintiff should not be afforded a second

opportunity to litigate those claims.

In Blonder-Tongue Labs., Inc. v . Univ. of Illinois

Foundation,

(1971), the Court addressed a similar

situation (in the context of a patent invalidity suit) and

observed:

In any lawsuit where a defendant . . . is forced to present a complete defense on the merits to a claim which the plaintiff has fully litigated and lost in a prior action, there is an arguable misallocation of resources. To the extent the defendant in the second suit may not win by asserting, without contradiction, that the plaintiff had fully and fairly, but unsuccessfully litigated the same claim in the prior suit, the defendant’s time and money are diverted from alternative uses - productive or otherwise - to relitigation of a decided issue. . . . Permitting repeated litigation of the same issue as long as the supply of unrelated defendants holds out reflects either the aura of the gaming table or a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure.

(citation and internal quotation marks omitted). See

also F.W. Standefer v . United States,

0 , 24 (1980)

(“Blonder-Tongue and Parklane Hosiery were disputes over private

rights between private litigants. In such cases, no significant

14 harm flows from enforcing a rule that affords a litigant only one

full and fair opportunity to litigate an issue, and there is no

sound reason for burdening the courts with repetitive

litigation.”); Lynch v . Merrell-National Labs. Div. of

Richardson-Merrell, Inc.,

(1st Cir. 1987)

(“Federally, the traditional requirement of mutuality has been

eliminated to permit a defendant to invoke estoppel against a

plaintiff who lost on the same issue to an earlier defendant.”)

(citation omitted).

The reasoning of Blonder-Tongue, as augmented in Parklane

Hosiery, applies directly to this case. In Nabatanzi I ,

plaintiff was afforded a full and fair opportunity to present

evidence in support of her assertion that various

constitutionally protected rights were violated during her

detention at Valley Street. Each of those claims was considered

on the merits and resolved against her. Accordingly, the

remaining Municipal Defendants are entitled to invoke defensive

collateral estoppel and plaintiff is barred from relitigating

those claims.

15 Because plaintiff’s federal claims in this proceeding are

identical to those raised in Nabatanzi I (that i s , plaintiff

raises no new facts or causes of action in this proceeding), and

because those claims were previously resolved against her on the

merits, the remaining Municipal Defendants are entitled to

judgment as a matter of law as to all federal claims asserted

against them.

Conclusion

For the foregoing reasons, the Municipal Defendants’ motion

for summary judgment (document n o . 41) is granted. As to all of

plaintiff’s federal claims, those defendants are entitled to

judgment as a matter of law. As to plaintiff’s state law claims,

the court again declines to exercise supplemental jurisdiction

and they are dismissed without prejudice. The Municipal

Defendants’ motion for leave to reply to plaintiff’s objection

(document n o . 45) is denied as moot.

Dr. Stein’s motion to strike default judgment (document n o .

47) is granted and all claims against him are dismissed, without

16 prejudice. Plaintiff’s motion for default judgment against Dr.

Stein (document n o . 49) is denied.

The Clerk of Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

April 1 9 , 2001

cc: Elizabeth M. Nabatanzi John A . Curran, Esq.

17