Nagle v. Warden, NHSP CV-08-413-JL 12/30/09 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Adam H. Nagle

v. Civil No. 08-CV-413-JL Opinion No.

Warden, New Hampshire State Prison, et al.

MEMORANDUM ORDER

This case asks whether prison guards used excessive force in

responding to an inmate's seizure-like episodes. Plaintiff Adam

Nagle, formerly an inmate at the New Hampshire State Prison, has

filed this civil rights suit against the prison warden and

various guards under

. He alleges that the

guards used excessive force in violation of his Eighth Amendment

rights and that, when he later complained about it, one of the

guards retaliated against him in violation of his First Amendment

rights. He also alleges intentional infliction of emotional

distress under state law. This court has jurisdiction under

(federal guestion) and 1367 (supplemental

jurisdiction).

Earlier in the case, this court denied Nagle's reguest for

preliminary injunctive relief,1 agreeing with Judge Muirhead that

Nagle was unlikely to succeed on the merits because "[n]othing in

the record supports his claim that he suffered from excessive

1Document no. 18. force" and his retaliation claim was "similarly baseless."2 The

defendants have now moved for summary judgment, see Fed. R. Civ.

P. 56, relying primarily on the testimony at the preliminary

injunction hearing. Nagle, who is proceeding pro se, has not

obj ected.

After reviewing the summary judgment record,3 this court

grants the motion. All witnesses on record have indicated that

the guards responded in good faith to Nagle's seizure-like

episodes and used only as much force as necessary under the

circumstances to prevent Nagle from harming himself or others.

Nagle, who admits to being unconscious during the episodes, has

presented no evidence to refute those accounts. His excessive

force and emotional distress claims therefore fail on the merits.

His retaliation claim also fails because nothing in the record

supports an inference of retaliatory intent.

I. Applicable legal standard

Summary judgment is appropriate where "the pleadings, the

discovery and disclosure materials on file, and any affidavits

2Document no. 16, at 18, 20 (Muirhead, M.J.).

3While the court normally hears oral argument on all dispositive motions, none was held in this case because Nagle was paroled from the prison but did not provide the court with contact information as reguired by Local Rule 83.6(e). Thus, the court was unable to provide him notice for a hearing and did not hold one.

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

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

Fed. R. Civ. P. 56(c). An issue is "genuine" if it may

reasonably be resolved in either party's favor at trial, and

"material" if it has the capacity to sway the outcome under

applicable law. Vineberg v. Bissonnette,

(1st

Cir. 2008) (guotations omitted). In making this determination,

the "court must scrutinize the record in the light most

flattering to the party opposing the motion, indulging all

reasonable inferences in that party's favor." Mulvihill v. Top-

Flite Golf C o .,

(1st Cir. 2003) .

Where, as here, the non-moving party files no response to

the summary judgment motion, "[a]11 properly supported material

facts in the moving party's factual statement shall be deemed

admitted," since they were not "properly opposed." L.R.

7.2(b)(2); see also De Jesus v. LTT Card Svcs., Inc.,

, 20 (1st Cir. 2007). Summary judgment does not, however,

"automatically follow" from the lack of a response. Stonkus v.

City of Brockton Sch. Dep't,

(1st Cir. 2003).

The court still must evaluate whether the moving party's

submission meets the summary judgment standard. See Fed. R. Civ.

P. 56(e) ("If the adverse party does not ... respond, summary

judgment, if appropriate, shall be entered against the adverse

party.") (emphasis added).

3 Consistent with these rules, the following background

summary is based on the factual statement in the defendants'

motion, which is supported by testimony from the preliminary

injunction hearing, Nagle's medical records, and prison

disciplinary records.4

II . Background

Nagle has a history of panic attacks and an anxiety disorder

that can cause seizure-like episodes.5 During these episodes, he

claims to lose consciousness and control over his body. He pulls

at his clothing and, when touched, reacts in a violent manner.

Upon regaining consciousness, he sometimes finds that he has

sustained injuries (including head injuries) or asks whether he

has injured anyone else.

Nagle suffered one of these seizure-like episodes in June

2008, two months after becoming an inmate at the New Hampshire

State Prison. His cellmate flagged the prison guards, who found

Nagle lying on the floor of his cell and called for a nurse.

41he defendants and their counsel omitted from their motion a number of significant facts, which needless to say did not help the court in its effort to evaluate Nagle's pro se claims. Where appropriate, the court has filled in factual gaps by using the transcript from the preliminary injunction hearing.

5It is unclear whether Nagle suffers actual seizures, because the brain activity typically associated with a seizure has not been detected, and his behavior during the episodes differs from that seen in a typical seizure.

4 They also placed blankets under his head to protect him from

injury. Nagle appeared to be drifting in and out of

consciousness. Within minutes, he regained enough control to

move from the floor to his bed, where one of the guards. Sergeant

Robert Parent, sat beside him.

The nurse arrived and began to evaluate Nagle. When she

attempted to take his pulse, he became combative, flailing his

arms and almost hitting her. Another guard. Corporal Randy

Inman, stepped in front of the nurse, and Nagle hit him in the

stomach. Corporal Inman then ordered that Nagle be taken down to

the floor for safety reasons. Sergeant Parent, who had been

attempting unsuccessfully to secure Nagle's wrists, guided him

down to the floor in a controlled manner, facedown at first and

then turning him over onto his back. The other guards helped

hold Nagle down on a mattress that they had moved to the floor.

Leaning over Nagle, Sergeant Parent tapped him on the chest and

said "stay with us."

After a brief reprieve, Nagle started to seize again. The

guards stopped holding him down, stood back, and let the episode

run its course. Upon regaining consciousness, Nagle asked what

had happened and whether he was in trouble. The guards told him

about his combative behavior, but assured him that he would not

be punished for it. Nagle received medical treatment from the

5 nurse and then fell asleep. Three days later, he received

additional treatment for a bump on his forehead.

Nagle suffered another seizure-like episode in August 2008.

This one happened away from his cell, and much less is known

about it. Nagle regained consciousness at the bottom of a

stairway, where prison staff found him lying facedown, and he

could not recall what had happened or whether he had fallen down

the stairs. Nagle was seen by a prison doctor for another bump

on his forehead and then taken to a nearby hospital for

treatment.

In September 2008, Nagle wrote a confidential letter to the

warden complaining about the guards' use of force during those

seizure-like episodes. Believing that prison staff intercepted

and opened the letter before it reached the warden, Nagle asked

one of the guards. Sergeant Christian Pelletier, to start an

investigation. Sergeant Pelletier refused to do so because he

lacked authority and because Nagle had not followed the proper

grievance procedure.6 He advised Nagle to start that process by

filing an inmate reguest slip with the appropriate staff member,

which Nagle did.

6See Ellison v. N.H. Dep't of Corr., 200

, 7-9 (describing the prison's three-level grievance procedure as set forth in Policy and Procedure Directive (PPD) 1.16) .

6 In the request slip, Nagle alleged that Sergeant Pelletier

said he would never investigate a fellow officer, even if he

witnessed misconduct with his own eyes. This allegation prompted

Sergeant Pelletier to initiate a disciplinary proceeding against

Nagle for lying. Following an investigation by Sergeant Parent,

Nagle was found guilty and some of his prison privileges were

temporarily suspended.7

Later, while conducting a routine safety search in Nagle's

cell. Sergeant Pelletier accidentally tore the corners of a

photograph and a piece of artwork taped to Nagle's wall. He

apologized to Nagle shortly afterward and suggested that, in the

future, Nagle should use looped tape on the back of his pictures

to prevent them from being torn during cell searches.

Notwithstanding this apology, Nagle filed an inmate request slip

in November 2008 complaining about the search. Lieutenant

Michael Schofield, believing that Nagle's complaint

mischaracterized the incident, initiated another disciplinary

proceeding against him for lying. Charges were dropped after

Sergeant Pelletier acknowledged tearing the pictures. Nagle

received no discipline.

7See PPD 5.25, Rule 56.B (prohibiting inmates from "lying, or providing false or misleading information to a staff member or to persons of authority"), issued pursuant to N.H. Rev. Stat. § 622:14.

7 Ill. Analysis

The defendants have moved for summary judgment on all of

Nagle's claims: (A) his Eighth Amendment claim alleging that the

prison guards used excessive force in responding to his seizure­

like episodes; (B) his First Amendment claim alleging that one of

the guards retaliated against him for complaining about the use

of force; and (C) his state-law claim of intentional infliction

of emotional distress. As explained below, the summary judgment

record shows that the guards used only as much force as necessary

under the circumstances to prevent Nagle from harming himself or

others. The record also shows that Nagle suffered no retaliation

for his combative behavior during the episodes or for later

complaining about the guards' response. Because Nagle has not

presented any evidence from which a reasonable fact-finder could

find in his favor, this court grants summary judgment to the

defendants on all claims.

A. Excessive force claim

Nagle claims that the defendants violated his Eighth

Amendment rights by using excessive force in responding to his

seizure-like episodes. See U.S. Const, amend. VIII (prohibiting

the infliction of "cruel and unusual punishments"). To prevail

on this claim, Nagle must show an "unnecessary and wanton infliction of pain." Skinner v. Cunningham,

(1st Cir. 2005) (quoting Whitley v. Albers,

(1986)). "The critical question in such a case is whether the

force was applied ''maliciously and sadistically for the very

purpose of causing harm,' rather than 'in a good-faith effort t

maintain or restore d i s c i p l i n e "

(quoting Whitley, 475 U.

at 320-21, and Hudson v. McMillian,

(1992)). In

answering this question, "the subjective motivations of the

individual officers are of central importance." Graham v.

Connor,

(1989). The court also may consider

various objective factors, including whether the defendants

needed to apply force, whether the force they applied was

proportional to that need, whether they made any efforts to

temper the severity of the force, and the extent of any injury

they caused. See Hudson,

; Whitley,

.

Here, the summary judgment record shows that the defendant

made a good-faith effort to respond to Nagle's seizure-like

episodes. All witnesses on record have indicated that Nagle

behaved in a combative manner during the June 2008 episode,

nearly hitting a nurse and then actually hitting a guard, and

that the guards used only as much force as necessary to prevent

Nagle from harming himself or others. According to the nurse,

the guards appeared genuinely concerned for Nagle's well-being and took extraordinary care in restraining him. The guards

confirmed that they were indeed concerned and trying to help

Nagle. They tempered the severity of their force by putting

blankets and then a mattress under him. As for the August 2008

episode, there is no evidence that the defendants witnessed it or

used any force at all.

Although Nagle strongly suspects that the guards used

excessive force on both occasions, he has admitted that he became

unconscious during the episodes and cannot personally recall what

happened. "For purposes of summary judgment, an allegation ...

must be based on personal knowledge and show affirmatively that

the [witness] is competent to testify to the matters stated

therein." Nieves-Luciano v. Hernandez-Torres,

(1st

Cir. 2005); see also Fed. R. Civ. P. 56(e) (1) (stating that

summary judgment affidavits "must be made on personal

knowledge"). The personal knowledge reguirement prevents a

witness from testifying to what he "could not have actually

perceived or observed." United States v. Rodriguez,

(1st Cir. 1998). Here, Nagle did not actually perceive

or observe the use of force. He is merely speculating as to what

happened while he was unconscious.8 Our court of appeals has

8To the extent that Nagle's speculation may be based on hearsay from his cellmate or other inmates, which is unclear from the record, "[i]t is black-letter law that hearsay evidence cannot be considered on summary judgment." Davila v. Corporacion de P.R. Para La Difusion Publica,

(1st Cir. 2007);

10 made clear that summary judgment cannot be defeated by "rank

speculation." Enica v. Principi,

(1st Cir.

2008).

The only evidence that Nagle has provided to support his

speculation is that he sustained injuries in both episodes,

including bumps on his forehead. It is true that the severity of

injury is one of various factors that--while not reguired--may be

considered in the excessive force analysis. See Hudson,

. Nagle has admitted, however, that he has a history of

violent behavior during his episodes and sometimes sustains

injuries, including head injuries, from contact with the floor or

walls before help arrives.9 Thus, the mere fact of such an

injury, standing alone, is not enough to create a genuine,

trialworthy issue as to whether the defendants used excessive

force, particularly when all witness testimony is to the

contrary.10 See Vineberg,

(explaining that an

see also Fed. R. Civ. P. 56(e)(1) (stating that summary judgment affidavits must "set out facts that would be admissible in evidence"). Moreover, his cellmate testified that he was removed from the cell when the guards arrived and did not personally witness the use of force either.

9It is worth noting, in this regard, that Nagle was already lying on the floor when the guards arrived at his cell during the June 2008 episode and was found lying facedown at the bottom of a stairway after the August 2008 episode.

10This analysis might have been different if Nagle's injuries had been more severe and arguably inconsistent with the witness accounts. See, e.g., Rivas v. City of Passaic,

(3d Cir. 2004) (seizure response resulting in death); Lolli

11 issue is "genuine" if it may reasonably be resolved in either

party's favor at trial) .

Nagle seems to take the extreme position that the

defendants' use of force was per se excessive because, under

proper medical procedure, they should have stood back and allowed

the episode to run its course without touching him at all. But

the record shows that the guards did, in fact, stand back and

allow the episode to run its course after moving Nagle to the

floor and placing him on a mattress for safety. This limited

"use of force could plausibly have been thought necessary."

Hudson,

(guoting Whitley,

); see

also Wysong v. City of Heath,

(6th Cir.

2008) (unpublished) (rejecting a similar argument in a seizure

case). Moreover, the excessive force standard11 reguires that

v. County of Orange,

(9th Cir. 2003) (seizure response resulting in broken ribs); Frazell v. Flanigan,

(7th Cir. 1996) (seizure response resulting in possible fractured skull and severe cuts), abrogation on other grounds recognized by McNair v. Coffey,

(7th Cir. 2002) .

11A slightly different standard applies to Eighth Amendment claims for inadeguate medical care, which reguire "deliberate indifference to serious medical needs." Estelle v. Gamble,

(1976); see also Hudson,

(distinguishing from excessive force claims). But Nagle waived any such claim by failing to object when Judge Muirhead, applying Local Rule 4.3(d)(2), expressly formulated his pro se claim as one for excessive force. See document no. 5 (Muirhead, M.J.). In any event, Nagle's claim would fail under the medical care standard as well, since the record shows that the defendants did not act with deliberate indifference and that Nagle received adeguate medical care for the injuries he sustained.

12 the force be not only unnecessary, but also wanton--!.e .,

"tantamount to a knowing willingness that [unnecessary harm]

occur."

All witnesses on record testified that they were

genuinely concerned for Nagle and trying to help him, not hurt

him. His unusual seizure-like behavior was unlike anything they

had ever seen and demanded an emergency response. Even if, in

hindsight or after further medical consultation, they might have

responded differently, nothing in the record suggests that the

defendants acted wantonly or in willful defiance of medical

standards.

The Supreme Court has made clear that "[u]nless it appears

that the evidence, viewed in the light most favorable to the

plaintiff, will support a reliable inference of wantonness in the

infliction of pain under the standard we have described, the case

should not go to the jury." Whitley,

. Since the

evidence here negates, rather than supports, such an inference,

this court grants summary judgment to the defendants on Nagle's

excessive force claim. C f . Everson v. Leis,

(6th Cir. 2009) (granting summary judgment on excessive force

claim where plaintiff "had no recollection" of his seizure and

"there is nothing to rebut the affidavits submitted by [the

officers] showing that [plaintiff] posed an immediate threat to

the safety of himself and emergency personnel"); Wysong,

(concluding, in similar circumstances and for

13 similar reasons, that plaintiff "cannot beat something with

nothing") .12

B. Retaliation claim

Nagle also claims that one of the defendants--either

Sergeant Parent or Sergeant Pelletier13--retaliated against him

for complaining about the guards' use of force, thereby violating

his First Amendment right "to petition the Government for a

redress of grievances." U.S. Const, amend. I. This claim

focuses, in particular, on two inmate reguest slips that Nagle

filed: one complaining about the use of force, and the other

complaining about a subseguent cell search in which Sergeant

Pelletier damaged two pictures taped to Nagle's wall. Both

complaints resulted in disciplinary proceedings against Nagle for

allegedly lying about what Sergeant Pelletier said or did. In

12Ihese were arrest cases, not prison cases, and thus involved the Fourth Amendment standard for excessive force, not the Eighth Amendment standard. The Fourth Amendment standard can be more favorable to plaintiffs because it focuses on "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham,

.

13Nagle initially brought his retaliation claim against most of the defendants, challenging a wide range of conduct. At the preliminary injunction hearing, however, he voluntarily dismissed it as to all but one defendant. Sergeant Parent. Judge Muirhead noted in his subseguent order that, based on the testimony, Nagle appeared to mean Sergeant Pelletier. Document no. 16, at 9 n.6 (Muirhead, M.J.). In an abundance of caution, this court analyzes the claim as to both defendants.

14 the first proceeding, investigated by Sergeant Parent, Nagle was

found guilty of lying and temporarily lost some prison

privileges. In the second proceeding, charges were dropped after

Sergeant Pelletier acknowledged that he accidentally tore the

pictures .14

To prevail on this retaliation claim, Nagle must show that

(1) his complaints were protected activity under the First

Amendment; (2) the defendants took adverse action against him,

and (3) there was a causal connection between the protected

activity and the adverse action. See, e.g.. Smith v. Mosley,

(11th Cir. 2008); Davis v. Goord,

(2d Cir. 2003); Mitchell v. Horn,

(3d Cir.

2003); Thaddeus-X v. Blatter,

(6th Cir.

1999) (en banc); Cossette v. Poulin,

, 7-8. This

court will assume, without deciding, that Nagle's complaints were

protected activity under the First Amendment, thus satisfying the

first element of his claim. See, e.g., Fogle v. Pierson,

(10th Cir. 2006) ("Several circuits have held

14These are Nagle's most significant allegations against Sergeants Parent and Pelletier. He also alleges that they refused to make free photocopies for him of their incident reports. But that was consistent with general prison policy applicable to all inmates, see PPD 7.42, and also consistent with the First Amendment. See, e.g., Johnson v. Moore,

(9th Cir. 1991) ("numerous courts have rejected any constitutional right to free and unlimited photocopying"). To the extent that Nagle makes other conclusory allegations of retaliation, "summary judgment cannot be defeated by relying on ... conclusory allegations." Enica,

.

15 that a prisoner's first amendment right to petition the

government for a redress of grievances encompasses the filing of

inmate administrative appeals."). His claim nevertheless fails

to satisfy the other two elements.

As to the second element, Nagle must show that the

defendants took adverse actions against him that "would chill or

silence a person of ordinary firmness from future First Amendment

activities." Morris v. Powell,

(5th Cir. 2006)

(guoting Crawford-El v. Britton,

(D.C. Cir.

1996) (en banc)). "[CJertain threats or deprivations are so de

minimis that they do not rise to the level of being

constitutional violations." Thaddeus-X,

.

Applying this standard, our court of appeals recently held that

no "reasonable fact-finder could conclude that inmates of

'ordinary firmness' would be deterred from continuing to exercise

their constitutional rights merely because of the filing of a

disciplinary charge" where that charge is ultimately dismissed

and the prisoner receives no discipline. Starr v. Dube,

(1st Cir. 2009) (unpublished). That is exactly

what happened to Nagle after his complaint about the torn

pictures: disciplinary charges were filed against him for

allegedly lying, but then were dismissed after Sergeant Pelletier

acknowledged tearing the pictures. As in Starr, this seguence of

events would not deter an inmate of ordinary firmness from

16 exercising his First Amendment rights and thus is not enough to

support a retaliation claim.15

Nagle might be able to show that the other disciplinary

proceeding at issue, in which he was found guilty of lying and

temporarily lost some of his prison privileges, satisfies the

second element of his retaliation claim. The record is unclear

as to whether the punishment rose above a de minimis level. Even

if it did, however, the third element of Nagle's claim--causation

--would still stand in his way. Our court of appeals has said

that inmates "face a substantial burden" to show that retaliation

is "the actual motivating factor" for the adverse action, meaning

that "but for" the retaliatory motive it would not have happened.

McDonald v. Hall,

(1st Cir. 1979); see also

Starr,

; Jackson v. Fair,

(1st Cir. 1988).

15Moreover, the notion that Sergeant Pelletier retaliated against Nagle, when he is the one who acknowledged tearing the pictures and thus prevented Nagle from being disciplined, defies logic. If Nagle means to suggest that Sergeant Pelletier retaliated against him by damaging the pictures in the first place, that claim is also clearly without merit. Sergeant Pelletier testified--and Nagle has not provided any reason to doubt--that he tore the pictures by accident and only at the corners. He apologized to Nagle shortly after it happened. The incident was not retaliatory and, in any event, was de minimis. Indeed, it did not deter Nagle from filing his subseguent complaint.

17 No reasonable fact-finder could conclude, on this record,

that Sergeants Parent and Pelletier disciplined Nagle in

retaliation for his complaint about excessive force. Indeed,

Sergeant Pelletier is the one who advised Nagle to file an inmate

reguest slip in the first place. And while one might view his

advice as sarcastic, insincere, or dismissive, the evidence in

the summary judgment record is that Sergeant Pelletier initiated

the disciplinary proceeding not because Nagle followed his advice

and filed the complaint, but rather because Nagle accused him of

saying that he would never investigate a fellow officer, even if

he witnessed misconduct with his own eyes (which he denied). Any

guard would have defended himself against such a scandalous

accusation and attempted to clear his name, irrespective of the

nature of the underlying complaint. Nagle has not offered any

reason to believe that "but for" a retaliatory motive the

disciplinary proceeding would not have happened. C f . Hasan v.

Dep't of Labor,

, 1005 (7th Cir. 2005) (Posner,

C.J.) (affirming summary judgment on retaliation claim where "the

defendants presented uncontradicted evidence that they punished

[the inmate] not because he tried to exercise free speech but

because his accusation was a lie").

This court recognizes that "a retaliatory state of mind

typically is not susceptible to proof by direct evidence,"

Ferranti v. Moran,

(1st Cir. 1980) (citing

18 McDonald,

), and that even if a defendant denies

having a retaliatory motive, circumstantial evidence can be

enough to establish liability if it supports a reasonable

inference of retaliation. See Beauchamp v. Murphy,

(1st Cir. 1994); Ferranti,

. But the

circumstances here cannot support such an inference. Nagle

admits that he never received any punishment for his combative

behavior during his seizure-like episodes. The defendants

treated them as medical emergencies, not as hostile encounters.

Months later, when Nagle asked for help with an investigation.

Sergeant Pelletier advised him to file a formal complaint. And

when Sergeant Pelletier later damaged pictures on Nagle's wall,

he apologized and admitted it to prison authorities. This is not

the sort of treatment that even remotely suggests retaliation.

This court therefore grants summary judgment on Nagle's

retaliation claim. See, e.g., Layne v. Vinzant,

(1st Cir. 1981) (concluding that retaliation claim should not

have gone to jury where inmate's allegations were based on "no

more than speculation and conjecture," and "any possible

inference[s] to be derived from the circumstances ... were fully

met by the evidence of a [legitimate] reason") .

19 C. Emotional distress claim

Finally, Nagle claims that the defendants, through the use

of excessive force, committed intentional infliction of emotional

distress under New Hampshire law.16 The bar for such a claim is

"very high." Moss v. Camp Pemigewassett, Inc.,

(1st Cir. 2002). Nagle must show "extreme and outrageous

conduct" by the defendants that "intentionally or recklessly

cause[d] severe emotional distress." Mikell v. Sch. Admin. Unit

N o . 33,

(2009). The conduct must go "beyond

all possible bounds of decency."

.

As explained above, the summary judgment record shows that

the defendants did not use excessive force in responding to

Nagle's seizure-like episodes, thus refuting the central premise

of his emotional distress claim. By all accounts, the defendants

responded with decency and genuine concern for Nagle's safety.

The court cannot conclude, on this record, that the defendants

16In most cases, the dismissal of all federal claims before trial "will point toward declining to exercise [supplemental] jurisdiction over the remaining state-law claims." Carnegie- Mellon Univ. v. Cohill,

, 350 n.7 (1988) . But there is no "mandatory rule" reguiring dismissal; courts must "consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction."

In this case, the close proximity to trial and the heavy overlap between Nagle's federal and state-law claims both point in favor of exercising jurisdiction. See, e.g., Nowak v. Ironworkers Local 6 Pension Fund,

(2d Cir. 1996). This court therefore resolves his state-law claim as well.

20 even approached the high bar of extreme and outrageous conduct

under New Hampshire law. Summary judgment is therefore granted

on this claim as well.

IV. Conclusion

For the reasons stated above, the defendants' motion for

summary judgment17 is GRANTED. The clerk shall enter judgment

accordingly and close the case.

SO ORDERED.

ante United States District Judge

Dated: December 30, 2009

cc: Adam H. Nagle Laura E. B. Lombardi, Esq.

17Document no. 28.

21