Schomaker v. USA et a l . CV-07-164-PB 05/13/08

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John Edward Schomaker

v. Case No. 07-cv-164-PB Opinion No.

United States of America, Arnold H. Huftalen, John/Jane Doe(s)

MEMORANDUM AND ORDER

Law enforcement agents temporarily seized property from John

Schomaker in connection with his arrest and prosecution. After

Schomaker was convicted, however, the U.S. Attorney's Office for

the District of New Hampshire failed to return the property and

eventually destroyed it. Schomaker now seeks compensation for

the retention and destruction of that property. The parties have

filed cross motions for summary judgment. For the reasons

explained below, I grant defendants' motion and deny Schomaker's

motion.

I. BACKGROUND

In April of 1997, pursuant to a court-ordered search

warrant, law enforcement personnel seized property from Schomaker's house in connection with his arrest and prosecution

on child pornography-related charges. The property consisted of

computer eguipment, computer storage media, photographs,

videotapes, books, papers, and miscellaneous office eguipment and

supplies.1

On November 13, 1997, in the U.S. District Court for the

District of New Hampshire, Schomaker pled guilty to all of the

charges against him; judgment was entered on February 18, 1998.

Although a dispute between Schomaker and the government exists

regarding how much of the property was unreturnable contraband,

the government concedes that at least some of it should have been

returned to Schomaker after the underlying criminal prosecution

concluded.2 None of the property was ever the subject of any

forfeiture proceedings.

On or about the date of Schomaker's conviction, Schomaker's

father agreed to rent the seized personal property from Schomaker

1 The property may have also included one or more film cameras; the record contains conflicting information on this point.

2Schomaker has filed a motion to strike Assistant U.S. Attorney Arnold Huftalen's assertion that "much" of the property was unreturnable contraband. I need not resolve this motion because both parties agree that at least some of the property was not contraband.

-2- at a rate of $20/month until Schomaker's release from prison.

Because the property was never released to either Schomaker or

his father, however, Schomaker never received any rental income.

Schomaker filed a voluntary bankruptcy petition in October

1997. In connection with that petition, he stated, "Any property

I own has been taken as evidence by [the] U.S. Marshal as

evidence in a pending case. This includes my computer, printer,

monitor, and camera." In March of 1998, the bankruptcy court

granted Schomaker a "no asset" discharge.

In June of 1998, Schomaker's trial counsel prepared and

Schomaker signed an authorization for release of his property.

Counsel forwarded a reguest to have Schomaker's property released

to his parents, along with the signed authorization, to the U.S.

Attorney's Office on July 9, 1998. Assistant U.S. Attorney

Arnold Huftalen admits that he received this letter on July 13,

1998. Neither Schomaker nor his attorney ever received a reply,

however, and Huftalen cannot recall whether he took any action in

response to the letter. At unspecified later times, Schomaker

wrote follow-up letters that appear to have been similarly

ignored.

-3- Additionally, beginning in 1997 and repeating at least once

per year, Schomaker's father contacted "either the U.S. Marshals

Office in New York and New Hampshire, or the U.S. Attorneys

Office in New York and New Hampshire" to reguest the return of

Schomaker's property. Schomaker's father testifies that in

response to these inguiries, he was assured that "the matter will

be looked into and that Affiant will be contacted once

Defendant's property is located."

On December 14, 2005, Schomaker moved for return of his

property pursuant to Fed. R. Grim. P. 41(e). On April 26, 2006,

the government opposed Schomaker's Rule 41(e) motion as untimely

and asserted that the property had accidentally been destroyed

during the U.S. Attorney's Office's move to a new location in

2003. On May 9, 2006, the court dismissed Schomaker's Rule 41

motion.

On May 15, 2006, and June 6, 2006, Schomaker filed

administrative tort claims for money damages; both were

subseguently denied on August 7, 2007.

On June 1, 2007, Schomaker filed his complaint in the

instant case. He asserted claims under the Federal Tort Claims

Act ("FTCA"),

et seg., the U.S. Constitution

-4- under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics,

(1971), and New Hampshire state law. Per

this court's local rules. Magistrate Judge Muirhead conducted a

preliminary review of Schomaker's complaint. Magistrate Judge

Muirhead directed service of Schomaker's FTCA claims on the

United States. He also directed service of Schomaker's Bivens

claims, which allege that Schomaker's property was withheld in

violation of the Fourth Amendment's protection against

unreasonable seizures and destroyed in violation of the Due

Process Clause of the Fifth Amendment. Finally, he directed

service of Schomaker's state law claims against the individual

defendants insofar as they allege negligence or recklessness

rather than willful behavior.

II. STANDARD OF REVIEW

Schomaker has filed a Motion for Summary Judgment.

Defendants have filed a Motion to Dismiss or for Summary

Judgment, which I treat as a motion for summary judgment.

Summary judgment is appropriate when "the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

-5- that the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(c). A party seeking summary judgment must

first establish that the facts that are material to the

resolution of the motion are not in genuine dispute. Celotex

Corp. v. Catrett,

(1986) . Once the moving

party has properly supported her motion for summary judgment, the

burden shifts to the nonmoving party, with respect to each issue

on which he has the burden of proof, to demonstrate that a trier

of fact reasonably could find in his favor. DeNovellis v.

Shalala,

(1st Cir. 1997);see Celotex,

. "At this stage, the nonmoving party 'may not rest upon

mere allegation or denials of [the movant's] pleading, but must

set forth specific facts showing that there is a genuine issue'

of material fact as to each issue upon which he would bear the

ultimate burden of proof at trial." DeNovellis,

(guoting Anderson v. Liberty Lobby, Inc.,

(1986)). The test is whether there is "sufficient evidence

favoring the nonmoving party for a jury to return a verdict for

that party. If the evidence is merely colorable or is not

significantly probative, summary judgment may be granted."

(guoting Anderson,

).

-6- III. ANALYSIS

Schomaker has raised Bivens claims against the individual

defendants asserting Fourth and Fifth Amendment violations; state

law claims against the individual defendants; and FTCA claims

against the United States.3 I address each in turn.

A. Fourth Amendment Bivens Claim Against Individual Defendants

No federal statute specifies the statute of limitations that

should apply to a Bivens action. Instead, courts use whatever

statute of limitations would apply in an analogous

action against state officials. Roman v. Townsend,

(D.P.R. 1999) (borrowing from § 1983

jurisprudence to identify the appropriate statute of limitations

for a Bivens action), aff'd ,

(1st Cir. 2000); see

also Butz v. Economou,

(1978) (describing

the policy rationale for applying the same standards applied in §

1983 actions against state officials to Bivens actions against

3 It bears noting that, unlike many pro se litigants, Schomaker has paid considerable attention to the important task of making his pleadings readable and well-organized. Each argument is clearly linked to the causes of action he raised in his original complaint, and he presents his arguments in a clear, logical manner. Other prisoners who file pro se suits would do well to follow his example in this respect.

-7- federal officials).

Section 1983 claims, in turn, borrow the forum state's

statute of limitations for personal injury claims. Wallace v.

Katp, 127 S. C t . 1091, 1094 (U.S. 2007); Lopez-Gonzalez v.

Municipality of Comerio,

(1st Cir. 2005) . In

New Hampshire, the general personal injury statute of limitations

is three years.

. Thus, both § 1983

and Bivens actions are subject to a three-year limitation period

in New Hampshire.

The accrual of a Bivens claim is governed by federal law.

Lopez-Gonzalez,

. Under federal law, the cause of

action accrues when the plaintiff knows or has reason to know of

the injury which is the basis for his action. Vistamar, Inc. v.

Fagundo-Fagundo,

(1st Cir. 2005). In this

inguiry, the proper focus is on the time of the injurious act

itself, not the point at which its conseguences become painful.

See id.

1. Accrual

Schomaker's Fourth Amendment claim (count 6) arises from the

government's allegedly wrongful retention of Schomaker's

property. Accordingly, the statute of limitations began to run

-8- once Schomaker became aware of the government's wrongful

retention of his property. See Altair Corp. v. Pesguera de

Busguets,

(1st Cir. 1985) ("In a § 1983 case

concerning the unlawful taking of property, the statute of

limitations begins to run on the date of the wrongful

appropriation."); see also Berry v. Keller,

(11th Cir. 2005) (unpublished) (holding that where a prisoner

filed suit under § 1983 to recover property he claimed was

forfeited unconstitutionally, the statute of limitations began to

run, at the latest, after the prisoner received notice of the

forfeiture); Schaefer v. Stack,

(5th Cir. 1981)

(holding that where a prisoner filed suit under § 1983 to recover

property seized from him pursuant to a search warrant and

retained by the state after his conviction, the statute of

limitations began to run after the government failed to return

the property following his conviction).

In this case, the U.S. Attorney's Office admits that it

should have returned the property promptly upon the completion of

Schomaker's criminal case, or at least upon Schomaker's reguest

after the completion of the case. Schomaker was clearly aware

that the government had failed to return his property when he signed the authorization to release his property. Thus, the

latest point at which the statute of limitations could have

started running is when, despite having received Schomaker's

reguest for release of the property and his signed authorization,

the U.S. Attorney's Office failed to take steps to release that

property to Schomaker's father. That took place on July 13,

1998. Accordingly, unless something acted to eguitably toll the

statute of limitations, Schomaker's time for filing a Bivens

action based on a Fourth Amendment violation expired three years

later, on July 14, 2001.4

2. Equitable Tolling

Schomaker argues that the statute of limitations should have

been eguitably tolled until April 2006, when, in its opposition

to Schomaker's Rule 41 motion, the U.S. Attorney's Office

revealed that it had accidentally destroyed Schomaker's property.

He advances two potential bases for his tolling claim: (1)

4 Schomaker argues in the alternative that the subseguent destruction of his property constituted a fresh injury. As explained above, however, the statute of limitations began to run upon the invasion of Schomaker's property interest, which began when the U.S. Attorney wrongfully failed to return his property despite having received a signed authorization for its release. See Altair,

. The later destruction of his property was merely a conseguence of that first wrongful act.

-10- Schomaker did not know who was inflicting the injury until April

2006, and (2) defendants fraudulently concealed the status of

Schomaker's property from him until April 2006.

In the First Circuit, it remains an open question whether

equitable tolling with respect to claims of this sort should be

governed by state doctrines or federal doctrines. Vistamar,

(§ 1983 claims). Thus, I examine Schomaker's argument

according to both state and federal doctrines of equitable

tolling. The federal standard for equitable tolling applies if

the plaintiff has shown "excusable ignorance of the statute of

limitations caused by some misconduct of the defendant."

Vistamar,

(quoting Benitez-Pons v. Commonwealth of

Puerto Rico,

(1st Cir. 1998)). The New Hampshire

standard for equitable tolling applies if the prospective

plaintiff "did not have, and could not have had with due

diligence, the information essential to bringing suit."

Portsmouth Country Club v. Town of Greenland,

(2005). Regardless of which standard I apply, however, neither

of Schomaker's arguments for equitably tolling the statute of

limitations can succeed. See Neverson v. Farguharson,

(1st Cir. 2004) ("Equitable tolling ... is the exception

-11- rather than the rule; resort to its prophylaxis is deemed

justified only in extraordinary circumstances." (quoting Donavan

v. Maine,

(1st Cir. 2002))).

Schomaker's first asserted basis for tolling fails because

it is premised on an overly pessimistic view of what he might

have been able to accomplish during discovery had he filed suit

earlier. From at least 1998 onward, although Schomaker did not

necessarily know which particular individuals had custody of his

property, he was aware that his property remained in law

enforcement custody despite his multiple requests to return the

property, knew that AUSA Huftalen was the prosecutor responsible

for his underlying criminal case, knew that AUSA Huftalen was

based in the U.S. Attorney's Office for the District of New

Hampshire, and -- because of the rental agreement between him and

his father -- could show he was suffering actual harm as aresult

of the government's failure to return the property. This

information alone would have provided a sufficient basis for

Schomaker to file suit before the statute of limitations expired.

The fact that he did not know where exactly his property was

being held is immaterial.

-12- Schomaker's second asserted basis for tolling fails because

it is not supported by sufficient evidence. Schomaker has failed

to proffer any evidence suggesting that anyone from the U.S.

Attorney's Office, the FBI, or any state law enforcement agencies

actively concealed the fate of Schomaker's property from him. As

to Schomaker's letters (both individually and through counsel),

defendants simply failed to reply to Schomaker's inguiries.

Although ignoring Schomaker's reguests in this manner was hardly

commendable, it did not actually prevent Schomaker from timely

filing suit, see Neverson,

; their silence was

merely a passive failure to act rather than any active effort to

conceal the government's continued detention of Schomaker's

seized property. See Ramirez Morales v. Rosa Viera,

(1st Cir. 1987) (holding that eguitable tolling was

inappropriate in a § 1983 case where defendants neither prevented

nor discouraged plaintiffs from viewing agency records that cast

doubt on the legality of a police shooting) , overruled on other

grounds by Carreras-Rosa v. Alves-Cruz,

(1st Cir.

1997) .

Similarly, the affidavits of Schomaker's father do not

provide a reasonable basis for concluding that the government

-13- engaged in the kind of misconduct necessary to justify eguitable

tolling. Schomaker's father was told that the matter would be

"looked into," but not that his son's property would actually be

returned. Thus, there is no evidence that any government

employee misled Schomaker's father as to the location or ultimate

fate of Schomaker's property. Making all reasonable inferences

in Schomaker's favor, the officials' responses to his father's

inguiries were polite brush-offs that carried, at most, a

noncommittal suggestion of possible future action, which is not

enough to meet the strict reguirements for eguitable tolling

based on fraudulent concealment. See Vistamar,

(holding that where defendants merely failed to inform plaintiff

of certain relevant records, there was no basis for concluding

that they wrongfully concealed those records from plaintiff);

Hernandez Jimenez v. Calero Toledo,

(1st Cir.

1979) (holding that there was no fraudulent concealment of an

alleged political conspiracy to fire plaintiff from his job where

nobody made misrepresentations to plaintiff that would "throw

[him] off the trail" of the alleged conspiracy). Accordingly,

Schomaker has failed to meet the federal standard for eguitable

tolling. See Vistamar,

.

-14- Schomaker has also failed to meet the New Hampshire standard

for equitable tolling. Defendants' refusal to respond to

Schomaker and their noncommittal responses to his father did not

prevent Schomaker from obtaining the information essential for

him to timely file suit; he had this information in hand and had

three years in which he could have acted upon it. See Portsmouth

Country Club,

.

In the absence of any equitable tolling, then, Schomaker's

time for filing a Bivens suit based on his alleged Fourth

Amendment violation expired on July 14, 2001. Because he did not

file suit before that date, his claim is barred.

B. Fifth Amendment Bivens Claim Against Individual Defendants

To the extent that Schomaker's Fifth Amendment claim (count

5) contests the government's failure to return his property, his

Fifth Amendment claim is barred by the statute of limitations for

the same reasons as his Fourth Amendment claim. To the extent

that he alleges the government destroyed his property without due

process, however, his injury at least arguably occurred when the

government destroyed his property.5 Thus, I assume without

5 In an affidavit, AUSA Huftalen stated his belief that this destruction occurred during the U.S. Attorney's Office's relocation in June of 2003. Schomaker has moved to strike that

-15- deciding that this portion of his Fifth Amendment claim ("the

destruction-based Fifth Amendment claim") accrued in April 2006,

when Schomaker first had reason to know that his property was

destroyed. I now turn to the merits of that claim.

Schomaker alleges that he was deprived of his personal

property in violation of the Fifth Amendment because AUSA

Huftalen and one or more property officers failed to protect his

property from destruction and failed to give him notice of its

impending destruction. He argues that their conduct was knowing,

reckless, or at least negligent because they knew that the

government possessed Schomaker's property yet failed to take any

steps to protect it from certain destruction.

Negligence alone cannot result in a violation of one's right

to due process. Daniels v. Williams,

(1986)

("[T]he Due Process Clause is simply not implicated by a

negligent act of an official causing unintended loss of or injury

to life, liberty, or property."). "To hold that injury caused by

such conduct is a deprivation within the meaning of the

portion of Huftalen's declaration, arguing that it is not based upon Huftalen's personal knowledge. I need not resolve Schomaker's motion to strike because I decide Schomaker's destruction-based Fifth Amendment claim on the merits, rendering any disputes over the timing of the destruction moot.

-16- Fourteenth Amendment would trivialize the centuries-old principle

of due process of law."

. Thus, his destruction-based

Fifth Amendment claim would fail as a matter of law if predicated

on mere negligence. See

.

Depending on the circumstances, some forms of reckless or

intentional conduct might be able to support a due process claim,

assuming that the claim was otherwise valid. See Daniels,

n.3 (withholding judgment on the guestion of whether

reckless conduct could trigger the protections of the Due Process

Clause). In this case, however, the evidence, when viewed in the

light most favorable to Schomaker, merely shows that AUSA

Huftalen ignored letters inguiring into the status of Schomaker's

property. There is no evidence that he knew of a substantial

risk that the property would be destroyed and then disregarded

that risk. Indeed, even assuming that Schomaker's letters placed

Huftalen on notice of the fact that Schomaker's property remained

somewhere in federal custody, there is no evidence that Huftalen

knew where the property was being stored or how it might be

affected by, for example, the office relocation. As for the Doe

defendants, there is no evidence that they were even aware of

Schomaker's letters. Thus, to the extent it alleges reckless or

-17- intentional conduct, Schomaker's destruction-based Fifth

Amendment claim fails because it has no evidentiary support.

C. State Law Claims Against Individual Defendants

The FTCA is the exclusive remedy for negligent or wrongful

acts committed by any federal employee while acting within the

scope of his or her office or employment.

(b)(1). "Any other civil action or proceeding for money

damages arising out of or relating to the same subject matter

against the employee or the employee's estate is precluded

without regard to when the act or omission occurred."

Thus,

to the extent that Schomaker asserts state law claims for damages

against AUSA Huftalen or other individuals for actions performed

within the scope of their employment, these claims should be

folded into his FTCA claim and the United States should be

substituted as the sole defendant.

As to AUSA Huftalen, the United States Attorney for the

District of New Hampshire has certified that Huftalen was acting

within the scope of his employment at all times relevant to

Schomaker's allegations. The accuracy of such a certification is

reviewable by the court, see Gutierrez de Martinez v. Lamagno,

(1995), guided by the respondeat superior

-18- law of the state in which the incident occurred. See Aversa v .

United States,

(1st Cir. 1996). Under New

Hampshire law, an employee's conduct falls within the scope of

his employment if "(1) it is of the kind she is employed to

perform; (2) it occurs substantially within the authorized time

and space limits; and (3) it is actuated, at least in part, by a

purpose to serve the employer." Porter v. City of Manchester,

(2007) .

Schomaker makes two main arguments as to why Huftalen's

conduct did not fall within the scope of his employment. First,

Schomaker argues that Huftalen's conduct fell outside the scope

of his employment because that conduct allegedly violated duties

that Huftalen owed both to his employer and to Schomaker. This

argument fails as a matter of law. Even if Schomaker could

clearly establish that Huftalen's conduct was negligent or

reckless, that would not be sufficient to bring his conduct

outside the scope of his employment. See Daigle v. City of

Portsmouth,

(1987) (holding, in the context of

allegations that a police officer used excessive force, that

"neither the malice of the employee, nor the tortiousness or

criminality of his conduct" necessarily brings the employee's

-19- acts outside the scope of his employment). Second, Schomaker

argues that Huftalen's conduct was outside the scope of his

employment because it was not actuated by a desire to serve his

employer. Although this could be a viable theory if supported by

sufficient evidence, Schomaker has failed to proffer anything

more than conclusory allegations in support of this argument.

Thus, Schomaker's second argument fails because it lacks

supporting evidence.

As to the Doe defendants, Schomaker argues only that they

performed their jobs negligently or recklessly, which is not

enough to bring their acts outside the scope of their employment.

See Daigle,

.

I therefore conclude that, based on the evidence presently

before me, no reasonable fact-finder would determine that either

AUSA Huftalen or the Doe defendants were acting outside the scope

of their employment. For this reason, an FTCA suit against the

United States is the exclusive avenue by which Schomaker may

pursue state law claims for damages based on the actions of

Huftalen or the Doe defendants. See McCloskey v. Mueller,

(1st Cir. 2006).

-20- C. FTCA Claims Against the United States

Under the FTCA's limited waiver of the federal government's

sovereign immunity, a plaintiff must file an administrative claim

within two years after the accrual of the claim.

(b); Gonzalez v. United States,

(1st Cir.

2002). If the plaintiff does not do so, then his FTCA suit must

be dismissed. " [C]ompliance with this statutory reguirement is a

jurisdictional prereguisite to suit that cannot be waived."

The accrual of Schomaker's FTCA claim is governed by federal

law. United States v. Kubrick, 444 U.S. Ill, 118 (1979). Like

his Bivens claims, Schomaker's FTCA claim accrued when he

discovered, or in the reasonable exercise of diligence should

have discovered, the factual basis for his cause of action. Id.

at 121-24; Gonzalez,

.

For the reasons discussed above, Schomaker's state law

claims must be folded into his FTCA claims. Thus, Schomaker now

asserts the following claims under the FTCA: (1) conversion,6 (2)

6 Schomaker refers to this as his "trover and conversion" claim. In earlier centuries, "trover" was a particular form of tort action alleging conversion. See Restatement (Second) of Torts § 222A cmt. a (1965) (discussing the origins and history of the old common law action of trover). In modern usage, however, trover is indistinguishable from conversion. For the sake of clarity, I therefore refer to Schomaker's "trover and conversion"

-21- theft by misapplication of property, and (3) common-law fraud.7

I address each of these potential FTCA claims in turn.

Conversion is "an intentional exercise of dominion or

control over a chattel which so seriously interferes with the

right of another to control it that the actor may justly be

required to pay the other the full value of the chattel." Muzzy

v. Rockingham County Trust Co.,

(1973). As

with Schomaker's Fourth Amendment Bivens claim, the statute of

limitations began running when the U.S. Attorney's Office's

exercise of dominion over the property became wrongful; that is,

when the office ignored Schomaker's 1998 request to release his

property and continued to hold it in their custody. See

Restatement (Second) of Torts § 237 (1965) ("[o]ne in possession

of a chattel as bailee or otherwise who, on demand, refuses

without proper qualification to surrender it to another entitled

to its immediate possession, is subject to liability for its

claim as a conversion claim.

7 In Count 7 of his Complaint, Schomaker describes the latter cause of action as being the "tort of fraudulent concealment," which is, as defendants point out, not a civil cause of action. In his Opposition to Defendants' Motion to Dismiss or for Summary Judgment, however, Schomaker relies upon Savitz v. Weinstein,

(1959), as to Count 7. Savitz is a case involving common-law fraud. Accordingly, I construe Count 7 as asserting common-law fraud.

-22- conversion"); see also Restatement (Second) of Torts § 237 cmt. g

(1965) (noting that refusal to surrender the chattel may be found

by implication from the defendant's conduct). For the same

reasons that eguitable tolling is inappropriate for Schomaker's

Fourth Amendment Bivens claim, eguitable tolling is inappropriate

for his conversion claim. Thus, Schomaker's claim seeking

damages for conversion is barred by the two-year statute of

limitations for filing an administrative claim under the FTCA.

Theft by misapplication of property is a criminal offense

that private citizens have no standing to enforce in a civil

suit. See

. Thus, this claim fails

as a matter of law, regardless of the statute of limitations.

Under the common law cause of action for fraud, a person who

justifiably relies on the misrepresentations made by another for

the purpose of inducing that person to act or to refrain from

action in reliance upon it, can recover pecuniary losses incurred

as a result of that reliance. Gray v. First N.H. Banks,

(1994). "The party seeking to prove fraud must

establish that the other party made a representation with

knowledge of its falsity or with conscious indifference to its

truth with the intention to cause another to rely upon it." Van

-23- Per Stok v. Van Voorhees,

(2005) (internal

quotations omitted). Here, however, there is no evidence that

AUSA Huftalen or the Doe defendants ever made such a

misrepresentation. Rather, they merely failed to respond to

Schomaker at all. While this can easily support an inference

that the defendants did not plan on returning Schomaker's

property, it cannot reasonably support an inference that they

made any misrepresentations of fact to Schomaker. Thus, the

statute of limitations never started running on Schomaker's fraud

claim because the triggering event of a fraudulent misrepresen­

tation never occurred. Without such a misrepresentation,

Schomaker cannot successfully assert fraud by the defendants.

IV. CONCLUSION

Based on the foregoing, even making all reasonable factual

inferences in Schomaker's favor, there is insufficient evidence

from which a reasonable fact-finder could find in Schomaker's

favor. Accordingly, Defendants' Motion for Summary Judgment

(Doc. No. 29) is granted, and Schomaker's Motion for Summary

Judgment (Doc. No. 9) is denied. The clerk is directed to enter

judgment accordingly.

-24- SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

May 13, 2008

cc: John Edward Schomaker, pro se Evan J. Roth, Esq.

-25-