Mabardy v Sanders, et al.

2014 DNH 005

• Court: District Court, D. New Hampshire
• Decided: January 14, 2014
• Docket: 13-CV-341-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

David Mabardy

v. Case No. 13-cv-341-PB Opinion No. 2014 DNH 005

Scott Sanders, et al

O R D E R

The Town of Kensington, Officer Scott Sanders, Pamela

Kehoe, and Detective Scott Cain (collectively the "Kensington

Defendants") have filed a motion for judgment on the pleadings.

The plaintiff, David Mabardy, has failed to object. Having

reviewed Mabardy's complaint, I grant the motion for judgment on

the pleadings with respect to all claims against the Kensington

Defendants except plaintiff's claims against Officer Sanders for

the reasons set forth in the defendants' motion.

In acting on a motion for judgment on the pleadings, I may

not rely on disputed factual assertions made by a defendant in

an answer or in other documents. Accepting Mabardy's factual

claims as true for purposes of the present motion, and

disregarding the other disputed facts proffered by the

defendants in their answer, Mabardy has pleaded minimally sufficient claims of excessive force and unlawful arrest. If

plaintiff's assertions are true, and no mitigating factors are

later established. Officer Sanders would not be entitled to

either qualified immunity or official immunity. In denying the

motion for judgment on the pleadings, I do so without prejudice

to Officer Sanders' right to renew his arguments in a properly

supported motion for summary judgment.1

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

January 14, 2014

cc: David Mabardy, pro se Charles P. Bauer, Esq.

I also take no view on whether abstention is a proper course of action in this case as the defendants have not argued that I should abstain from acting on plaintiff's complaint.