UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Lynette Maryea

v. Civil No. 13-cv-318-LM Opinion No.

David Baggs, et al.

O R D E R

On June 9, 2010, two inmates at the Strafford County House

of Corrections (“HOC”) in Dover, New Hampshire assaulted Lynette

Maryea, another inmate. Maryea brings federal civil rights

claims and state law claims against Strafford County and

Strafford County Department of Corrections (“DOC”) officials

based on their alleged failure to prevent the assault.

Defendants have moved for summary judgment. Maryea objects.

Standard of Review

A movant is entitled to summary judgment where he “shows

that there is no genuine dispute as to any material fact and

[that he] is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). In reviewing the record, the court construes all

facts and reasonable inferences in the light most favorable to

the nonmovant. Kelley v. Corr. Med. Servs., Inc.,

(1st Cir. 2013). Background

In June 2010, Lynette Maryea was an inmate at the HOC.

Maryea was housed in Unit A, a special housing unit for inmates

or pre-trial detainees with mental or physical disabilities. On

or around June 4, Maryea informed staff members several times

that Annette Krikorian, another inmate, was harassing and

provoking her. Maryea also informed staff that other inmates

had warned her “that something was going to happen” to her.

Maryea, however, was unable to provide any specific details to

staff concerning what was going to happen to her. Although

Maryea provides no evidence identifying which staff members she

informed, she alleges that she told classification officers

Robert Metcalf, David Baggs, and Nicole Wilkins that she was in

“imminent danger.” Compl. (doc. no. 1-2) ¶¶ 31-33.

On June 9, Maryea informed classification officer William

Bryant that she was having issues with another inmate and did

not want to act out. Bryant reported this conversation to

Lieutenant Gwen Weisgarber. Weisgarber told Bryant to have

Maryea lock herself in her cell until Weisgarber could speak

with her.

When Weisgarber spoke with Maryea later in the day, Maryea

informed Weisgarber that she was having issues with Krikorian,

who was provoking her and instigating trouble with her. Maryea

explained that she had tried to confront Krikorian concerning

2 these issues, but Krikorian had just yelled at her, called her

names, and told her that she would fight. Maryea also said that

she thought Krikorian had some type of plan, but that she

“didn’t know what it was obviously.” Maryea Dep. (doc. no. 16)

12:2-7. Maryea also explained that she did not fear Krikorian

because Krikorian was so “little, I could snap her in half.”

Weisgarber Decl. (doc. no. 11-5) ¶ 10.

In response, Weisgarber told Maryea that she should stay

away from Krikorian to avoid getting into trouble. She reminded

Maryea that if a problem did occur, Maryea could lock herself in

her cell. Weisgarber also told Maryea that she should notify an

officer if she was having an issue with Krikorian and should not

try to handle anything herself. Finally, Weisgarber told Maryea

that she would speak with Baggs, a classification officer, and

that they would work on a solution to the issues between

Krikorian and Maryea. Weisgarber did speak to Baggs and the two

discussed options for resolving Maryea’s concerns.

Maryea stayed locked in her cell for the rest of the day

until later that evening when she left to get dinner. At that

time, Krikorian and another inmate, Ashley Leighton, assaulted

Maryea. Maryea alleges that the assault occurred in the

kitchen. Maryea concedes that there is no evidence that any

defendant or other staff member witnessed the assault. See

Order (doc. no. 27) 2.

3 Maryea filed a complaint in state court alleging federal

and state law claims against Strafford County, Weisgarber,

Wilkins, Bryant, Metcalf, Baggs, and Lieutenant Donna Roy, the

lieutenant that Maryea alleged was on duty during the assault.1

Defendants removed the action to this court. Maryea brought her

federal claims under

and premised them on the

allegation that DOC officials were deliberately indifferent to

Maryea’s safety because they failed to prevent the assault.2

Maryea brings state law claims against all defendants for

negligence and against Strafford County for negligent hiring and

supervision and respondeat superior.

At the time of the assault, the DOC had a policy, which

required inmates with complaints about prison conditions to

submit a grievance. The grievance policy establishes a formal

three-step process, including appeals, for the submission and

resolution of written complaints. Generally, the grievance

policy requires an inmate to “file a written/formal grievance

within fourteen . . . days of discovery of the grievable issue.”

1 Maryea also originally brought claims against Warren Dowaliby, the DOC’s superintendent, and the DOC itself. Those claims, however, were dismissed with prejudice based on the parties’ joint stipulation. See Stipulation for Dismissal (doc. no. 5).

2 Maryea also brought a claim for deliberate indifference to her medical needs after the assault. In her papers, Maryea states that she is no longer pursuing this claim. Obj. (doc. no. 20) 1 n.1.

4 See Pelkie Decl., Ex. A (doc. no. 11-3) 2. It also permits an

inmate to make a “verbal/informal initial grievance” within

seven days of the discovery of a grievable issue.

It is

undisputed that Maryea failed to file a formal, written

grievance concerning the assault.

Discussion

Defendants filed two motions for summary judgment.3 The

first motion (doc. no. 11) argues that Maryea failed to exhaust

her administrative remedies, a requirement for inmates bringing

federal claims, and that defendants are entitled to immunity on

the state law claims under N.H. Revised Statutes Annotated

(“RSA”) 507-B:5 and 507-B:4, IV. In the second motion (doc. no.

15), defendants argue that they are entitled to common law

immunity on Maryea’s state law claims and that Maryea has failed

to adduce any evidence that creates a genuine issue of material

fact entitling her to a jury trial on her federal claims.

3 Neither of defendants’ motions for summary judgment includes a “statement of material facts, supported by appropriate record citations,” as is required under Local Rule 56.1(a). Ordinarily, the appropriate remedy for such an omission is a denial of the motion. Nevertheless, given the deadlines in this action and the lack of prejudice to Maryea caused by defendants’ noncompliance, the court will not dismiss the motions based on L.R. 56.1.

5 Maryea has objected to both motions.4 Because, as discussed

below, defendants’ first motion for summary judgment disposes of

Maryea’s claims, the court need not address defendants’ second

motion.

I. Exhaustion of Federal Claims

Defendants argue that they are entitled to summary judgment

on Maryea’s federal claims under the Prison Litigation Reform

Act (“PLRA”) because Maryea did not submit a grievance

concerning the assault and therefore failed to exhaust her

administrative remedies. Maryea contends that she is excused

from the PLRA exhaustion requirements.

A. Legal Standard

Under the Prison Litigation Reform Act of 1995, “[n]o

action shall be brought with respect to prison conditions under

section 1983 of this title, or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a). To exhaust administrative

remedies under the PLRA, a prisoner “must complete the

administrative review process in accordance with the applicable

4 While these motions were pending, Maryea’s counsel filed a motion for leave to withdraw as her counsel (doc. no. 21). That motion is also currently pending before the court.

6 procedural rules.” Jones v. Bock,

(2007)

(internal quotation marks omitted). The PLRA’s exhaustion

requirement “applies to all inmate suits about prison life,

whether they involve general circumstances or particular

episodes.” Porter v. Nussle,

(2002).

Congress enacted the PLRA’s exhaustion requirement “to

reduce the quantity and improve the quality of prisoner suits.”

Nussle,

. To achieve this purpose, the PLRA

“afford[s] corrections officials time and opportunity to address

complaints internally before allowing the initiation of a

federal case.”

. “In some instances, corrective

action taken in response to an inmate's grievance might improve

prison administration and satisfy the inmate, thereby obviating

the need for litigation.”

And when a prisoner does proceed

with a lawsuit, requiring exhaustion can improve the quality of

that suit “by producing a useful administrative record.” Bock,

.

When an inmate fails to properly exhaust administrative

remedies, her federal claims are subject to dismissal under the

PLRA. Medina-Claudio v. Rodríguez-Mateo,

(1st

Cir. 2002); Polansky v. McCoole, No. 13-CV-458-JL,

, at *7 (D.N.H. Jan. 20, 2016) (granting summary judgment

where inmate failed to exhaust administrative remedies). If no

administrative remedies are available, however, exhaustion is

7 not required. Brown v. Valoff,

(9th Cir.

2005) (noting that “the statutory language [of the PLRA] does

not require exhaustion when no pertinent relief can be obtained

through the internal process”). Failure to exhaust is an

affirmative defense, Bock,

, and, as such, it

“must be raised and proved by the defense.” Cruz Berrios v.

Gonzalez-Rosario,

(1st Cir. 2010).

B. Application

Defendants move for summary judgment on Maryea’s federal

claims, arguing that Maryea did not exhaust her administrative

remedies because she failed to file a grievance concerning the

assault. Maryea concedes that she did not submit a grievance

regarding the assault. She argues, however, that she is excused

from the PLRA’s exhaustion requirement because there were no

administrative remedies “available” to her. The DOC’s

administrative remedies were unavailable, Maryea contends,

because once the assault occurred, those remedies could not

provide any “relief . . . regarding inadequate protection.”

Obj. (doc. no. 16) 4.5

5 Maryea contends that she properly submitted an initial grievance because she informed staff before the assault about Krikorian’s harassment and the reported generalized threats. Maryea’s claims, however, concern the assault and, therefore, the only question before the court is whether Maryea exhausted her remedies with regard to the assault. See Crosby v. Strafford Cty. Dep't of Corr., No. 12-CV-383-LM,

To be “available” under the PLRA a remedial scheme need

only provide prison officials authority to “take some action in

response to a complaint.” Frazier v. Fairhaven Sch. Comm.,

(1st Cir. 2002) (quoting Booth v. Churner,

(2001)); Johnson v. Thyng,

(1st

Cir. 2010). Consequently, an inmate must exhaust the entire

administrative process, “regardless of the relief offered

through administrative procedures.” Booth,

.

That is so even when the relief offered might not personally

benefit the plaintiff. See Medina-Claudio,

(holding that exhaustion is still required under the PLRA even

when the inmate has been transferred to another institution);

Ruggiero v. County of Orange,

(2d Cir. 2006)

(requiring exhaustion because formal grievance might have

“resulted in developing . . . policies and procedures pertaining

to the grievance or disciplining the relevant officers”)

(quoting Braham v. Clancy,

(2d Cir. 2005)).

Here, defendants have submitted an affidavit from Bruce

Pelkie, the current DOC superintendent, listing examples of the

actions that DOC officials could have taken had Maryea filed a

grievance after the assault. See Pelkie Decl. (doc. no. 17-1)

4385006, at *4 (D.N.H. Sept. 3, 2014) (holding that grievances predating an assault are not relevant to question of whether inmate grieved the assault).

9 ¶¶ 3-8. For example, Pelkie contends that DOC officials could

have investigated Maryea’s claims and disciplined any officers

who did not adequately perform their duties. Id. at ¶¶ 5-6.

Pelkie also asserts that DOC officials could have moved Maryea,

Krikorian, or Leighton for Maryea’s future safety.6 Id. at ¶ 7.

Finally, Pelkie asserts that DOC officials could have changed

the DOC’s procedures, policies, and training guidelines for the

issues presented in Maryea’s claims. Id. at ¶ 5.

There is no evidence in the summary judgment record

refuting Pelkie’s statements that DOC officials could have taken

these actions had Maryea submitted a grievance concerning the

assault. Therefore, the DOC’s administrative remedies were

“available” under the PLRA, and Maryea was required to exhaust

them.

To the extent Maryea argues that exhaustion was futile

because DOC officials could not provide her preferred remedy of

adequate protection, she is mistaken. “[T]here is no ‘futility

exception’ to the PLRA exhaustion requirement.” Medina-Claudio,

. Further, as discussed above, exhaustion

provides prison officials the opportunity to resolve prisoner

complaints and develop an administrative record for litigation.

6 In her objection, Maryea contends that “once the assault occurred, [she] was separated from the attackers” and therefore “no longer required protection.” Doc. no. 16 ¶ 12. That assertion, however, is supported by no record evidence.

10 Bock,

. Thus instead of being futile, Maryea’s

exhaustion of administrative remedies would have been beneficial

not just to defendants, but also to Maryea’s own prosecution of

this action. Therefore, Maryea is not excused from the PLRA

exhaustion requirement based on futility.

Accordingly, Maryea has failed to exhaust the

administrative remedies available to her, and as a result, the

court must dismiss her federal claims.

II. State Law Claims

Maryea brings state law claims against Strafford County and

all six individual defendants. Defendants move for summary

judgment on these claims, arguing that they are barred under RSA

507-B:5 and 507-B:4, IV, which provide immunity to government

actors. Maryea objects and contends that the immunity statutes

are inapplicable to her claims.

A. Claims Against Strafford County

Maryea brings claims for negligence, wrongful hiring,

training, and supervision, and respondeat superior against

Strafford County. Defendants argue that they are entitled to

immunity on those claims under RSA 507-B:5. In response, Maryea

contends that her claims fall within an exception to the

immunity.

11 i. Legal Standard

Under RSA 507-B:5, “[n]o governmental unit shall be held

liable in any action to recover for bodily injury, personal

injury, or property damage except as provided by this chapter or

. . . may be provided by other statute.” A “governmental unit”

is “any political subdivision within the state including any

county.” RSA 507-B:1, I. The governmental immunity provided

under RSA 507-B:5 “immunizes the defendant from suit based upon

the particular claims asserted by the plaintiff.” Lamb v.

Shaker Reg’l Sch. Dist.,

(2015).

RSA 507-B:2 creates an exception to governmental immunity

under RSA 507-B:5. RSA 507-B:2 provides, in pertinent part,

that “[a] governmental unit may be held liable for damages in an

action to recover for bodily injury [or] personal injury . . .

caused by its fault or by fault attributable to it, arising out

of ownership, occupation, maintenance or operation of all motor

vehicles, and all premises.”

ii. Application

Maryea does not dispute that Strafford County is a

“governmental unit” and that her claims are “to recover for

bodily injury [or] personal injury.” See RSA 507-B:1. Maryea

contends, however, that Strafford County is not entitled to

12 immunity because her injuries were caused by Strafford County’s

operation of the HOC premises. See RSA 507-B:2.

That exception requires Maryea to show a causal nexus

between her injuries and the operation of the jail’s physical

premises. Lamb,

. In Lamb, the plaintiff sued a

school district to recover for injuries her son suffered when

another student tackled him during a recess football game.

. The trial court dismissed the plaintiff’s claim, holding

that the school district was entitled to immunity under RSA 507-

B:5.

The New Hampshire Supreme Court (“NHSC”) affirmed,

rejecting plaintiff’s argument that RSA 507-B:5 was inapplicable

because her son’s injuries were caused by the school district’s

operation of the school premises.

.

In doing so, the NHSC held that the “RSA 507-B:2 exception

to municipal immunity requires a nexus between the claim and the

governmental unit’s ownership, occupation, or operation of its

physical premises.”

. The NHSC also expressly

rejected the plaintiff’s argument that the phrase “operation of

. . . all premises” in RSA 507-B:2 included the “operation of a

business or enterprises located on those premises.”

.

Maryea provides no evidence of a nexus between her claim

and Strafford County’s operation of the physical HOC premises.

To the contrary, the evidence that Maryea has submitted

demonstrates that her injuries, just like those in Lamb, were

13 caused by independent actors and unrelated to the physical

premises. Thus, Maryea’s claim is barred by RSA 507-B:5.

Maryea contends, however, that a nexus between her claims

and the physical premises is unnecessary because the HOC is no

“ordinary premises,” in that its purpose is to allow Strafford

County to supervise and confine inmates. That argument is

unavailing. First, Maryea cites no authority to support the

proposition that a facility’s purpose is a basis for ignoring

the rule that a plaintiff’s claim must have a nexus to the

defendant’s physical premises. Second, like the HOC here, the

school in Lamb was also operated for the purpose of supervising

others. See Gauthier v. Manchester Sch. Dist.,

(2015) (“[S]chools share a special relationship with

students entrusted to their care, which imposes upon them

certain duties of reasonable supervision.”) (internal quotation

marks omitted).

For these reasons, Strafford County is entitled to

governmental immunity and judgment as a matter of law on

Maryea’s negligence claim against it.

A. Claims Against Individual Defendants

The individual defendants move for summary judgment on

Maryea’s negligence claims, arguing that they are entitled to

14 governmental immunity under RSA 507-B:4, IV. Maryea objects,

contending that the immunity is inapplicable.

i. Legal Standard

The immunity that protects governmental units under RSA

507-B:5 also protects government employees in certain

circumstances. That protection is set forth in RSA 507-B:4, IV,

which provides that:

If any claim is made or any civil action is commenced against a present or former employee, trustee, or official of a municipality or chartered public school seeking equitable relief or claiming damages, the liability of said employee or official shall be governed by the same principles and provisions of law and shall be subject to the same limits as those which govern municipal liability, so long as said employee or official was acting within the scope of his office and in good faith.

RSA 507-B:4, IV.

Maryea does not dispute that the individual defendants were

acting within the scope of their offices during the events at

issue. Rather, Maryea contends that the individual defendants

are not entitled to governmental immunity because they did not

act in good faith.

As another court in this district has observed, RSA 507–

B:4, IV, does not define “good faith,” and the NHSC has not had

the occasion to define that term for the purpose of the statute.

See Holm v. Town of Derry, No. 11–cv–32–JD,

, at

*3 (D.N.H. Dec. 20, 2011). Nevertheless, this court has

15 determined that the NHSC “would define the term ‘good faith’ in

RSA 507-B:4 as ‘honesty in belief or purpose’ and ‘faithfulness

to one’s duty or obligation.’” See Crosby v. Strafford Cty.

Dep’t of Corr., No. 12-CV-383-LM,

, at *6 (D.N.H.

June 2, 2015) (quoting Black’s Law Dictionary 808 (10th ed.

2014)). Therefore, to avoid summary judgment, Maryea must point

to evidence from which a factfinder could reasonably conclude

that the individual defendants failed to act with the honesty

and faithfulness required of good faith actions.

ii. Classification Officers

Bryant, Baggs, Wilkins, and Metcalf (the “officer

defendants”) move for summary judgment on Maryea’s claim that

they negligently responded to her reports of Krikorian’s

harassment and the generalized threats from other inmates.

The officer defendants contend that the undisputed facts in the

summary judgment record provide no basis from which a factfinder

could reasonably conclude that they acted in bad faith.

In response, Maryea argues that the officer defendants did

not act in good faith for two principal reasons. First, Maryea

asserts that the officer defendants deliberately failed to

intervene during the assault. Second, Maryea contends that the

officer defendants disregarded her complaints that she was being

threatened and harassed.

16 1. Failure to Intervene

Maryea argues that the officer defendants acted in bad

faith because they “turned a blind eye” while Krikorian and

Leighton assaulted her. Maryea’s argument is unpersuasive.

Maryea makes no allegations in the complaint that any officer

witnessed the assault and failed to intervene. Order (doc. no.

27) 1. Maryea also concedes that there is no evidence that any

staff member, including the officer defendants, witnessed the

assault. Id. at 2. Moreover, Maryea has not produced evidence

that any of the officer defendants knew in advance about the

assault and purposely avoided being nearby. Accordingly, the

undisputed evidence in the record provides no basis from which a

factfinder could reasonably conclude that the officer

defendants’ failure to intervene in the assault was an exercise

of bad faith.

2. Failure to Respond to Complaints

Maryea also argues that the officer defendants did not act

in good faith because they disregarded her complaints and “did

nothing to prevent the brutal assault.” Obj. (doc. no. 16)

¶ 21. Defendants, however, have submitted evidence showing that

Bryant took affirmative action in response to Maryea’s

complaints by passing them up the chain of command. This

17 evidence rebuts Maryea’s assertion that the officer defendants

did nothing.7 Maryea, on the other hand, has produced no

evidence that any of the officer defendants ever failed to

acknowledge her complaints or showed any animus against her.

Nor has Maryea pointed to any evidence from which a factfinder

could conclude that the officer defendants acted dishonestly or

without faithfulness to their duties and obligations.

Nevertheless, Maryea argues that the officer defendants’

failure to “issue unit-wide warnings” concerning threats and

harassment is evidence of bad faith. Obj. (doc. no. 16) ¶ 21.

In support of this argument, Maryea relies on Crosby,

. In Crosby, the plaintiff sued a classification officer

who issued similar unit-wide warnings, alleging that the officer

had placed him in danger because the warnings notified other

inmates that the plaintiff had reported their misconduct. Id.

at *8.

In granting the Crosby defendant immunity under RSA 507-

B:4, IV, this court held that the officer’s warnings were not

evidence of bad faith. Id. It did not hold, however, that such

unit-wide warnings are a necessary condition for immunity under

7 Although defendants have produced evidence concerning only Bryant’s response to Maryea’s complaints, Maryea concedes that the other officer defendants’ liability is coextensive with that of Bryant. See Order (doc. no. 27) 1.

18 RSA 507-B:4, IV when a plaintiff complains about harassment or

threats. See id. Indeed, this court acknowledged that the

warnings in Crosby might have “had the unintended consequence of

inciting” the attack on the plaintiff. Id. Given this

potential unintended consequence, the court declines to hold

that the lack of such warnings is evidence of bad faith.

Accordingly, there is no evidence within the summary

judgment record from which a factfinder could reasonably

conclude that the officer defendants did not act in good faith.

For this reason, the officer defendants are each entitled to

governmental immunity and judgment as a matter of law on

Maryea’s negligence claims against them.

iii. Weisgarber

Weisgarber moves for summary judgment on Maryea’s claim

that she knew Maryea was in imminent danger and failed to

respond appropriately. Weisgarber argues that the undisputed

evidence in the summary judgment record provides no basis to

conclude that she acted in bad faith. In response, Maryea

argues that Weisgarber acted in bad faith because she did

nothing in response to Maryea’s complaints except tell Maryea

that she should “stay in her cell to avoid confrontation.” Obj.

(doc. no. 16) ¶ 21.

19 The summary judgment record does not support Maryea’s

narrow account of Weisgarber’s response. In her declaration,

Weisgarber states that she suggested multiple strategies for

resolving Maryea’s complaints, including staying away from

Krikorian and notifying officers if she had a problem with

another inmate. Weisgarber also states in her affidavit that

she spoke with Baggs to discuss other potential resolutions to

Maryea’s complaints. Maryea, on the other hand, has produced no

evidence disputing Weisgarber’s declaration or showing that

Weisgarber disregarded her complaints in any other way.

Therefore, there is no evidence in the record from which a

factfinder could reasonably conclude that Weisgarber acted in

bad faith by disregarding Maryea’s complaints.8

In addition, Maryea has produced no evidence from which a

factfinder could reasonably conclude that Weisgarber acted

dishonestly, disingenuously, or without faithfulness to her

duties when responding to Maryea’s complaints. Although Maryea

alleges that Weisgarber knew that she was in imminent danger,

there is no evidence in the record that Maryea ever informed

Weisgarber or any other staff member of a specific, imminent

8 Maryea also contends that Weisgarber did not act in good faith because she failed to issue unit-wide warnings as was done in Crosby. See

, at *8. For the reasons stated in the discussion of Crosby above, that argument fails.

20 threat to her safety. See Maryea Dep. (doc. no. 16-1) 130:23-

131:3 (“I had also advised staff that I had been warned by other

inmates that something was going to happen to me but had no

details with respects to what”); (doc. no. 16-2) 12:2-6 (“I

spoke of [Krikorian] having some type of plan . . . I didn’t

know what it was obviously.”).

In short, while Maryea has produced evidence that she

complained about Krikorian’s harassment and that Weisgarber’s

response to those complaints did not prevent the assault, Maryea

has produced no evidence that Weisgarber failed to act in good

faith. For this reason, Weisgarber is entitled to governmental

immunity and judgment as a matter of law on Maryea’s negligence

claim against her.

iv. Roy

Maryea brings a negligence claim against Roy, alleging that

she was the lieutenant on duty during the assault and should

have known that Maryea was in danger. Maryea further alleges

that Roy failed to properly supervise the defendant officers.

Roy moves for summary judgment, arguing that there is no

evidence in the record that she failed to act in good faith.

The court agrees.

As an initial matter, Maryea only makes four generalized

allegations against Roy, all of which are limited to assertions

21 about what she knew or should have known. The complaint

contains no allegations that Roy engaged in any specific

conduct, much less conduct that would constitute bad faith. For

this reason, Maryea’s claims against Roy cannot escape the

immunity provided under RSA 507-B:4, IV. See Day v. Hurley, No.

12-CV-317-LM,

, at *13 (D.N.H. May 6, 2014)

(granting summary judgment based on RSA 507-B:4, IV where

complaint did not allege bad faith conduct).

Further, Maryea has not submitted any evidence concerning

Roy. For example, there is no evidence in the summary judgment

record that Roy was the lieutenant on duty during the assault.

There is also no evidence that Roy had knowledge of Maryea’s

complaints or that she ignored any malfeasance by the officers

under her supervision. Simply put, there is no evidence in the

record from which a factfinder could reasonably conclude that

Roy was not acting in good faith while carrying out her duties

during the events at issue.

Accordingly, Roy is entitled to governmental immunity and

judgment as a matter of law on Maryea’s negligence claim against

her.

Conclusion

For the foregoing reasons, the court grants defendants’

first motion for summary judgment (doc. no. 11). The court

22 denies defendants’ second motion for summary judgment (doc. no.

15) as moot. Maryea’s counsel’s motion for leave to withdraw

(doc. no. 21) is terminated without prejudice.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

March 15, 2016

cc: Tony F. Soltani, Esq. Corey M. Belobrow, Esq.

23