Yekimoff v. Seastrand CV-02-187-B 03/19/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Serge Yekimoff

Civil No. 02-187-B Opinion N o .

David Seastrand, et a l ,

MEMORANDUM AND ORDER

Serge Yekimoff has brought this civil rights action against

New London Police Chief David Seastrand, New Hampshire Police

Officer David Goldstein, Assistant County Attorney David Rotman,

former Public Defender Jeanne Herrick, the Town of New London,

and Merrimack County. He claims that defendants violated his

rights under the United States Constitution by: (1) arresting him

without probable cause; (2) making false promises to induce him

to surrender; (3) maliciously prosecuting him; (4) providing

false testimony and otherwise undermining the fairness of his

trial; (5) discriminating against him on the basis of his

ethnicity, sexual orientation, and perceived HIV status; (6)

engaging in a conspiracy to violate his constitutional rights; and (7) failing to provide him with adequate mental health and

dental care, denying him access to the courts and subjecting him

to illegal strip searches while he was incarcerated awaiting

trial. He also asserts a variety of state law claims.

Defendants have filed motions for judgment on the pleadings.

Because I determine that Yekimoff has not alleged viable federal

claims against any of the defendants, I grant defendants' motions

as to those claims and decline to exercise supplemental

jurisdiction over Yekimoff's state law claims.

BACKGROUND1

The events leading to the present litigation began on

December 13, 2000 when Yekimoff wrote a suicide note. Upon

reading it, a friend called the New London Police Department.

Patrolman Robert Thorp responded to the call and found Yekimoff

in the backyard of his friend's house. Thorp decided to take

Yekimoff into protective custody after a failed attempt to engage

him in conversation. At that point, Yekimoff took out a gun and

1 Unless otherwise noted, I draw the relevant facts from Yekimoff's allegations in the Second Amended Complaint ("Complaint") (doc. no. 29).

- 2 - pointed it at his own head, saying that he would rather kill

himself than surrender.2 Thorp drew his own pistol in response,

and Yekimoff ran inside his friend's house. An armed standoff

ensued, and Thorp sought assistance from other jurisdictions and

a SWAT team.

Over the course of the next several hours. New London Police

Chief David Seastrand and others negotiated by telephone with

Yekimoff. Troopers Spaulding and Mitchell, and perhaps others,

were at the scene. At some point, Seastrand offered Yekimoff

mental health care and immunity and told him that the State of

New York, which had issued a warrant for Yekimoff's arrest on a

probation violation, would not seek his extradition. In

response, Yekimoff demanded to speak to the prosecutor. New

Hampshire State Police Lieutenant David Goldstein called

Yekimoff, falsely identified himself as Dan Gordon, an Assistant

County Attorney, and confirmed Seastrand's immunity offer.

Yekimoff nevertheless refused to surrender until after tear gas

rounds were fired into the house approximately 10 hours after

2 The parties disagree as to whether Yekimoff also pointed the gun at Thorp.

- 3 - Thorp first arrived on the scene.3

Yekimoff was arraigned and charged on December 14, 2000,

with criminal threatening and being a fugitive from justice. New

London Police Officer Kinzer and Assistant County Attorney Rotman

prepared the complaint describing the charges. Assistant County

Attorney Helrich argued for $150,000 cash bail, but the court set

bail at $25,000 on the criminal threatening charge and ordered

Yekimoff to be held without bail on the fugitive from justice

charge.

On December 20, 2000, a probable cause hearing was held at

the New London District Court, where Attorney Herrick was

assigned to represent Yekimoff. At that time, Herrick and

Yekimoff discussed Yekimoff's version of the events. She advised

him to waive the probable cause hearing as it "would be more

advantageous to have it at 'a later date when more information be

[sic] discovered.'" (Compl. I 15). Yekimoff accepted her

advice.

3 Tear gas is mentioned only in the Answers filed by Seastrand and New London (doc. no. 36). However, this fact does not appear to be in dispute.

- 4 - Herrick and Yekimoff did not speak again until January 14,

2001, when he was brought to Merrimack County Superior Court for

a hearing to increase his bail. There, Herrick informed him that

the fugitive from justice charge had been dismissed but that the

state wanted to raise his bail on the criminal threatening

charge. At the hearing, Rotman described the state's version of

events. Neither Rotman nor Herrick informed the court of the

immunity ruse. Bail was raised to $100,000.

On January 26, 2001, Herrick wrote to Yekimoff, stating that

she would file a motion for bail reduction. However, she never

filed the motion. On February 1, 2001, Yekimoff filed a pro se

motion to appear before the grand jury. Although Rotman notified

Yekimoff that he would be allowed to testify before the grand

jury. County Attorney Johnson later decided that because Yekimoff

was incarcerated, he would only be allowed to testify via a

written statement to be reviewed in advance by Rotman. The court

ultimately denied Yekimoff's motion to appear before the grand

jury.

Seastrand, Goldstein, and Thorp were complaining witnesses

at the grand jury hearing, and Rotman presented the case to the

- 5 - grand jury. Yekimoff asserts that the witnesses perjured

themselves and that Rotman knowingly suborned their perjury. On

February 15, 2001, the grand jury returned an indictment charging

Yekimoff with reckless conduct, criminal threatening, and being a

felon in possession of a firearm. Although Herrick promised to

obtain a transcript of the grand jury proceedings, she made no

attempt to do so.

On February 28, 2001, Yekimoff learned that Herrick had left

the public defender's office and withdrawn from his case.

Yekimoff then filed a motion to proceed pro se. He was arraigned

on March 12, 2001, and entered a not guilty plea. The court

initially denied his reguest and appointed Michael Davidoff as

his new attorney. On March 15, 2001, Yekimoff renewed his motion

to proceed pro se, and on April 19, 2001, the court granted it.

Yekimoff claims that Rotman acted unscrupulously in

prosecuting him. He states that Rotman offered him an

opportunity to change his plea to insanity, which Yekimoff

"categorically rejected." (Compl. 5 19). Later, however, Rotman

"vigorously opposed" Yekimoff's motion to appoint a psychiatric

- 6 - expert. Additionally, on May 30, 2001, after Yekimoff rejected

Rotman's offer to change his plea again, Rotman served him with a

Notice of Intent to Seek an Extended Sentence.

Yekimoff challenges the conditions of his pretrial custody.

He was subjected to visual body cavity inspection searches

following visits and trips to the library. Yekimoff claims that

"as part of the search, corrections officers inspected the inside

of plaintiff's mouth and soles of his feet, he was also ordered

to lift his testicles to fully expose his groin, and to spread

his buttocks, at which time officers visually inspected his body

cavity." (Compl. 5 22).

Yekimoff received no mental health assistance while he was

in custody. Nor did he receive dental or other medical care. He

further asserts that the jail's conditions provided "unreasonable

food rationing," "hazardous air quality," and "overcrowding."

(Compl. 5 22). He also complains of limitations on his access to

the New Hampshire Supreme Court law library, which was designated

as the library available for pro se criminal defendants.

Yekimoff was acquitted of all charges at his criminal trial.

- 7 - STANDARD OF REVIEW

The standard for reviewing a motion for judgment on the

pleadings is essentially the same as the standard for reviewing a

motion to dismiss for failure to state a claim. See Collier v.

City of Chicopee,

(1st Cir. 1998); Cooper v.

Thomson Newspapers, Inc.,

(D.N.H. 1998).

Accordingly, in reviewing such a motion I "accept as true the

well-pleaded factual allegations of the complaint, draw all

reasonable inferences therefrom in the plaintiff's favor, and

determine whether the complaint, so read, sets forth facts

sufficient to justify recovery on any cognizable theory."

Donovan v. City of Haverhill,

(1st Cir. 2002)

(citation omitted). "Judgment on the pleadings under Rule 1 2 (c)

may not be entered unless it appears beyond a doubt that the

nonmoving party can prove no set of facts in support of her claim

which would entitle her to relief." Feliciano v. Rhode Island,

(1st Cir. 1998); Int'l Paper Co. v. Town of

Jay,

(1st Cir. 1991) . Although the standard

for judgment on the pleadings is difficult to satisfy, it is not

unattainable. The standard does not reguire "that a court must (or should) accept every allegation made by the complainant, no

matter how conclusory or generalized." United States v. AVX

Corp.,

(1st Cir. 1992); see also Wash. Legal

Found, v. Mass. Bar Found.,

(1st Cir. 1993)

("[b]ecause only well-pleaded facts are taken as true, we will

not accept a complainant's unsupported conclusions or

interpretations of law"). Nor will I engage in speculation to

find a factual basis for unsupported conclusory allegations. I

also am mindful that a complaint filed by a pro se litigant must

be held to "less stringent standards" than one drafted by a

lawyer. See Haines v. Kerner,

(1972) . I note,

however, both that Yekimoff appears to be a fairly experienced

pro se litigant (see, e.g., Yekimoff v. Sup, of Merrimack County

House of Corr., Civ. No. 01-224 (dismissed without prejudice))

and that the current motions challenge Yekimoff's second amended

complaint, which is his third attempt to produce an adeguate

complaint.

ANALYSIS

Yekimoff asserts a series of federal and state claims for

unlawful arrest, malicious prosecution, unlawful abuse of process, and conspiracy against a number of individual and

municipal actors. For ease of consideration, I discuss each

federal claim in turn. Because I ultimately conclude that the

facts asserted do not support a viable claim against any of the

defendants under federal law, I grant defendants' motions for

judgment on the pleadings as to Yekimoff's federal claims and

decline to exercise supplemental jurisdiction over his state

claims.

A. Probable Cause for the Arrest

Yekimoff claims that his arrest was illegal because

defendants lacked probable cause to arrest him. See, e.g.,

Meehan v. Town of Plymouth,

(1st Cir. 1999);

Rivera v. Murphy,

(1st Cir. 1992). I disagree.

Taking as true the facts as stated in the complaint, it is clear

that the defendants had ample grounds to arrest Yekimoff on

several charges.

Probable cause exists when "'the facts and circumstances

within the [police officers' ] knowledge and of which they had

reasonably trustworthy information were sufficient to warrant a

prudent [person] in believing that the [defendant] had committed

- 10 - or was committing an offense.'" Rivera,

(Quoting

United States v. Figueroa,

(1st Cir. 1987)

alterations in original). The test is objective, but looks to

the facts and evidence of the particular case. Here the evidence

available to Seastrand and other police officers was clearly

sufficient to support a reasonable belief that Yekimoff had

committed several offenses.

Yekimoff admits that: (1) he had a gun that he represented

was loaded; (2) he asserted that he would rather kill himself

than be taken into custody; (3) he took out the gun in Thorp's

presence; (4) he refused to be taken into custody even though he

was repeatedly instructed to surrender; (5) he was wanted by the

New York authorities on an outstanding probation violation

warrant; and (6) he had been convicted of a felony in the State

of New York.4 (Compl. 5 13-14, 23). These admitted facts gave

defendants ample cause to believe that Yekimoff was a felon in

possession of a firearm in violation of

, a fugitive from justice under

, and was guilty of resisting arrest under N.H. Rev. Stat.

4 The police were aware of his outstanding arrest warrant in New York during the standoff.

- 11 - Ann. § 594:5, and criminal threatening under

. The fact that a jury later acquitted him of these

charges does not undermine the validity of his arrest. Roche v.

John Hancock Mut. Life Ins. Co.,

(1st Cir. 1996)

("[t]he inquiry into the existence vel non of probable cause is

not to be undertaken from the perspective of hindsight but from

the perspective of a hypothetical 'reasonable man' standing in

the reporting person's shoes at the time when that person

acted"). I therefore determine that none of the defendants are

liable for arresting Yekimoff without probable cause.

B. False Promise to Induce Surrender

Yekimoff asserts that defendants violated his constitutional

rights when they offered him immunity and mental health

assistance as a ruse to get him to surrender. I disagree.

Yekimoff did not give up any constitutional rights by relying on

the immunity and mental health assistance offers, and he had no

right to resist arrest, regardless of whether the arrest was

lawful. See

. Thus, the ruse did

not cause him any harm. Moreover, the ruse was no more egregious

than similar conduct in other cases that did not give rise to

- 12 - viable constitutional claims. See, e.g.. United States v.

Renqifo,

(1st Cir. 1988) (permissible for police to

secure custody by deceit). While it would have been preferable

if Yekimoff had surrendered immediately as Thorp demanded,

thereby making misrepresentations of this sort unnecessary, an

immunity ruse was a reasonable method of securing his safe

surrender after hours of failed negotiations in an armed

standoff. I therefore dismiss all claims against all defendants

related to the immunity ruse.

C. Malicious Prosecution

To the extent Yekimoff asserts a § 1983 claim for malicious

prosecution, it fails. New Hampshire provides an adequate remedy

for the common law tort of malicious prosecution. MacRae v.

Brant,

(1967). The availability of this state law

remedy defeats any procedural due process claim for malicious

prosecution. Roche v. John Hancock Mut. Life Ins. Co.,

(1st Cir. 1996) ("a garden-variety claim of malicious

prosecution garbed in the regalia of § 1983 must fail."); Meehan

v. Town of Plymouth,

(1st Cir. 1999) ("[a] § 1983

claim for malicious prosecution as a deprivation of procedural

- 13 - due process is barred where, as here, the state's tort law

recognizes a malicious prosecution cause of action").

D. False Testimony and other Misconduct During Trial

Yekimoff asserts that various aspects of his trial and

pretrial proceedings violated his Sixth Amendment right to a fair

trial. In pertinent part, the Sixth Amendment ensures criminal

defendants a fair and impartial jury, a speedy trial, information

about the charges against him, and assistance of counsel. See,

e.g.. Turner v. Louisiana,

(1965); Doggett v.

United States,

(1992); Maine v. Moulton,

(1985). Yekimoff fails, however, to allege sufficient

facts to support a Sixth Amendment claim against any of the

defendants.

Yekimoff claims that Seastrand perjured himself and

reguested that other police officers perjure themselves, too.

Nowhere in his complaint, however, does he identify the

perjurious statements. Without these factual allegations, his

claims against Seastrand fail. See, e.g.. Wash. Legal Found, v.

Mass. Bar Found.,

(1st Cir. 1993) . In any

event, Seastrand is entitled to absolute immunity. See Briscoe

v. LaHue,

(1983).

- 14 - Yekimoff asserts that Rotman perjured himself when he denied

in testimony that he was "unaware of the police officers [sic]

falsehoods until after the standoff had concluded, and that he

was helping police to draw an arrest warrant." (Compl. 5 13).

This claim fails because Rotman is entitled to absolute immunity.

Briscoe,

. Rotman is therefore entitled to dismissal

of all claims that are based on testimony he gave as a witness.

Yekimoff also asserts that Rotman obtained a false report to

from Goldstein which purported to be from a psychological expert

and indicated that Yekimoff would be eligible for an enhanced

sentence. Since Yekimoff was acguitted, however, he was not

subjected to any increased sentence, and therefore he suffered no

compensable harm as a result of this alleged misconduct.

Yekimoff appears to claim that public defender Herrick

denied him effective assistance of counsel. He also asserts that

Herrick was motivated by race and national origin bias, as well

as sexual orientation bias. He concedes, however, that because

Herrick is not a state actor, she cannot be held liable on a §

1983 claim unless she conspired with public officials.

Malachowski v. City of Keene,

(1st Cir. 1986)

(per curiam) (private attorney, sued for actions taken as a

- 15 - court-appointed counsel, is not acting under color of state law);

Dennis v. Sparks,

(1980). However, Yekimoff

fails to allege any facts to support his conspiracy theory.

Yekimoff also claims that Rotman violated his trial rights

by breaching a promise to allow him to testify before the grand

jury. This allegation, however, would not support a

constitutional claim even if it were true. There is no specific

provision in the Constitution that protects the public from

governmental deceit, nor does Yekimoff point to one. I therefore

analyze this claim under the substantive due process standard.

In order to find a constitutional violation, Rotman's conduct

would need to be extreme or outrageous, which it clearly was not.

United States v. Russell,

(1973).

Yekimoff also asserts that defendants improperly interfered

with his bail proceedings and denied him his "right to be free

from excessive bail." (Compl. 5 29). In order to assert a claim

for bail impropriety, Yekimoff must show among other things that

the defendant "help[ed] to shape" and "exercis[ed] significant

influence over" the bail decision. Wagenmann v. Adams,

(1st Cir. 1987).

Here, there is no indication that Seastrand, Rotman, or any

- 16 - other defendant actively participated in the first bail hearing.

Nor does the complaint otherwise explain how any of the

defendants influenced the bail decision that was made at that

hearing. At the second bail hearing, Rotman asked the court to

increase bail, and Herrick represented Yekimoff. The facts

asserted state only that

Rotman recited a police concocted version of the incident, asking the state court to increase cash bail to $100,000 - because the plaintiff did obtain assurances of his friends to secure $25,00 cash bail and because he previously 'dared' to fight extradition. At the hearing, Herrick failed to inform the court about the immunity proffer or to raise issues of plaintiff's mental condition during the incident. She was unwilling (because of her personal bias towards the plaintiff), unprepared and incompetent to oppose bail increase that resulted in a $100,000 cash bail which the plaintiff was unable to meet."

(Compl. 1 16). Taking these assertions as true, I do not find

that either Herrick or Rotman engaged in actionable misconduct.

Yekimoff also alleges in a bare conclusory form that

Merrimack County is liable for Rotman's actions, stating that it

hired an incompetent prosecutor, failed to train him, and

negligently supervised him. He does not allege, however, that

Merrimack County has a policy of doing any of these things. Nor

does he sufficiently plead a failure to train claim. Therefore,

- 17 - Merrimack County does not bear any liability for Rotman's

allegedly improper conduct. See Meehan v. Town of Plymouth, 167

F .3d 85, 92 (1st Cir. 1999)

E. Discrimination Based on Ethnicity, Sexual Orientation, or Perceived HIV Status

Yekimoff asserts that he was denied equal protection of the

law because Seastrand thought he "was not good enough, [] because

of his national origin and because of his sexual orientation and

then-perceived HIV status."5 (Compl. 5 2 6) . Nowhere in the

complaint, however, does Yekimoff identify his national origin,

his sexual orientation, or his HIV status. Nor does he assert or

allege facts to support an implication that Seastrand or anyone

else was aware of his national origin, sexual orientation, or HIV

status. Furthermore, he does not allege any facts to show that

he was treated differently from anyone else. His bare conclusory

statements are insufficient.

Yekimoff makes similar unsupported allegations regarding

Rotman. He points to a series of actions taken by Rotman in

5 Yekimoff has some unmatched quotation marks in this portion of his complaint, but lacks citations or attribution. I therefore treat this as an assertion rather than a quotation and I will not speculate on the source.

- 18 - relation to his psychiatric evaluation and sentencing, but these

do not establish that Rotman intended to discriminate against

him. Rubinovitz v. Rogato,

(1st Cir. 1995) (mere

recitation of coincidences does not establish improper motive).

Therefore his claims that he was denied egual protection

necessarily fail, first because he has not alleged that the

defendant knew of his status, and second because he has not

alleged any facts showing that he was treated differently from

anyone else. Judge v. City of Lowell,

(1st Cir.

1998) (stating that "district judges may dispose of [claims

against public officials on egual protection grounds] prior to

permitting any discovery where a plaintiff, having been provided

the opportunity to do so, fails to allege specific, nonconclusory

factual allegations that establish improper motive") (internal

guotation omitted); c f ., Calderon-Ortiz v. Laboy-Alvarado,

(1st Cir. 2002).

F. Conspiracy

Yekimoff asserts that each individual defendant acted in

conspiracy with the others to deprive him of constitutional

rights. A civil rights conspiracy under § 1983 is

a combination of two or more persons acting in

- 19 - concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another, and an overt act that results in damages.

Earle v. Benoit,

(1st Cir. 1988) (internal

guotations omitted). For a conspiracy to be actionable under §

1983, the conspiracy must have resulted in an "actual deprivation

of a right secured by the Constitution and Laws." Brennan v.

Hendrigan,

(1st Cir. 1989) . As described

above, Yekimoff has failed to show any facts that would establish

that his rights were infringed in any way. I therefore dismiss

his conspiracy claims.6

G. Access to the Courts, Mental Health Assistance, and Body Cavity Searches

Yekimoff also asserts that Rotman, in concert with others,

denied him meaningful access to the courts by eliminating his

weekly visits to the library for a period of time. To establish

standing to litigate this claim in federal court, Yekimoff must

show that he has suffered an actual injury, i.e., that the

limitations on his access to the law library "hindered his

6 His conspiracy claim under

fails for similar reasons.

- 20 - efforts to pursue a legal claim." Lewis v. Casey,

(1996); see also Christopher v. Harbury,

(2002). Since Yekimoff ultimately prevailed in his pro se

defense and was acquitted, he has not alleged any injury.

Yekimoff asserts that the defendants violated his

constitutional rights by failing to provide him with mental

health treatment after his arrest.7 To state a claim for

inadequate medical care Yekimoff must allege facts demonstrating:

(1) a serious medical need; and (2) the defendants' purposeful

indifference thereto. See Sires v. Berman,

(1st

Cir. 1987); see also, Mahan v. Plymouth County House of Corr.,

(1st Cir. 1995) (deliberate withholding of specifically

requested prescribed antidepressants cannot be the basis for

liability if the prison officials were not subjectively aware of

a serious medical need for them). Even in this, his third

attempt at drafting an adequate complaint, Yekimoff has failed to

allege any facts that establish that the prison officials either

7 Yekimoff asserts that he was incarcerated at the Merrimack County House of Corrections. Because he has not sued any of the individual employees of the House of Corrections, the only defendant that could be held liable for conditions of confinement claims is Merrimack County.

- 21 - knew or should have known that Yekimoff had any serious medical

needs that were going unmet. Farmer v. Brennan,

(1994) (subjective knowledge reguired to show deliberate

indifference).

Yekimoff asserts that his need for mental health assistance

was so obvious that the fact that he did not receive it

"manifested reckless and callous disregard . . . and 'deliberate

indifference.'" (Compl. 5 72). Beyond the relevant facts

already discussed (that Yekimoff had threatened suicide and that

he had been offered mental health assistance by others not at the

prison), Yekimoff does not assert any additional facts that would

suggest that he had any serious medical need for mental health

care. Finally, even if Yekimoff had alleged facts that might

support a claim against one or more prison employees, he has not

alleged facts that would permit a claim to be asserted against

the County on this basis.8

8 For the same reasons, I find no liability regarding the failure to provide emergency dental care. Yekimoff has not asserted anything beyond the fact that he was denied it. Nowhere in his complaint (or other court submissions) does he state whether he had a dental emergency, whether he informed anyone or whether anyone was aware of his need for treatment. In the absence of such allegations, Merrimack County is entitled to judgment on the pleadings.

- 22 - Yekimoff also asserts that Merrimack County violated his

constitutional rights by subjecting him to visual body cavity

searches after visits and trips to the library. He adeguately

asserts that the searches were the result of municipal policy or

custom. See, e.g., Monell v. Dept, of Social Servs.,

(1978); Maldonado-Denis v. Castillo-Rodriguez,

(1st Cir. 1994). Because Yekimoff was accused of

criminal threatening through the use of a firearm, however, he

cannot complain that he was improperly strip searched after

visits and trips to the library. Roberts v. Rhode Island,

(1st Cir. 2001) ("courts have given prisons

latitude to premise searches on the type of crime for which an

inmate is convicted or arrested. The reasonable suspicion

standard may be met simply by the fact that the inmate was

charged with a violent felony") (citing Dufrin v. Spreen,

(6th Cir. 1983) (visual body cavity search did not

violate the Fourth Amendment rights of woman arrested for

felonious assault). Accordingly, I reject his challenge to the

County's alleged strip search policy.

H. Other Federal Claims

To the extent that Yekimoff claims that Seastrand violated

- 23 - his constitutional rights by spreading rumors about him, he does

not state a constitutional claim. See Paul v. Davis,

(1976) (there is "no constitutional doctrine converting

every defamation by a public official into a deprivation of

liberty within the meaning of the Due Process Clause of the Fifth

or Fourteenth Amendment") (internal footnote omitted). Yekimoff

has asserted only bare conclusions, not facts from which I could

find that he had any injury beyond that of ordinary defamation.

This claim must therefore fail.

I. State Law Claims

Yekimoff has asserted a variety of state law claims against

each defendant. Because the parties are not diverse, I have

jurisdiction over the state law claims only to the extent that

they are supplemental to the federal claims. See

. Since I am dismissing all federal claims, I exercise my

discretion, given the early stage of this litigation, to decline

to exercise jurisdiction over the state law claims.

(c)(3); Martinez v. Colon,

(1st Cir. 1995);

United Mine Workers v. Gibbs,

(1966).

- 24 - CONCLUSION

For the reasons discussed above, I grant judgment on the

pleadings for each defendant with respect to Yekimoff's federal

claims (Doc. nos. 71, 51, 47, 50, 48), and decline to exercise

jurisdiction over his state law claims. This necessarily renders

all other pending motions moot.

SO ORDERED.

Paul Barbadoro Chief Judge

March 19, 2004

cc: Serge Yekimoff, pro se John Alexander, Esg. Andrew Livernois, Esg. Emily Rice, Esg. Andrew Schulman, Esg.

- 25 -