UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Lynette Maryea
v. Civil No. 13-cv-318-LM Opinion No. 2016 DNH 055 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., 707 F.3d 108,
115 (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 42 U.S.C. § 1983 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. Id. 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, 549 U.S. 199, 218 (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, 534 U.S. 516, 532 (2002).
Congress enacted the PLRA’s exhaustion requirement “to
reduce the quantity and improve the quality of prisoner suits.”
Nussle, 534 U.S. at 524. 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.” Id. at 525. “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.” Id. 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,
549 U.S. at 204.
When an inmate fails to properly exhaust administrative
remedies, her federal claims are subject to dismissal under the
PLRA. Medina-Claudio v. Rodríguez-Mateo, 292 F.3d 31, 36 (1st
Cir. 2002); Polansky v. McCoole, No. 13-CV-458-JL, 2016 WL
237096, 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, 422 F.3d 926, 935 (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, 549 U.S. at 216, and, as such, it
“must be raised and proved by the defense.” Cruz Berrios v.
Gonzalez-Rosario, 630 F.3d 7, 11 (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, 2014 WL
8 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., 276
F.3d 52, 62 (1st Cir. 2002) (quoting Booth v. Churner, 532 U.S.
731, 736 (2001)); Johnson v. Thyng, 369 F. App'x 144, 149 (1st
Cir. 2010). Consequently, an inmate must exhaust the entire
administrative process, “regardless of the relief offered
through administrative procedures.” Booth, 532 U.S. at 741.
That is so even when the relief offered might not personally
benefit the plaintiff. See Medina-Claudio, 292 F.3d at 35-36
(holding that exhaustion is still required under the PLRA even
when the inmate has been transferred to another institution);
Ruggiero v. County of Orange, 467 F.3d 170, 177 (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, 425 F.3d 177, 183 (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,
292 F.3d at 35. 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, 549 U.S. at 204. 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., 168 N.H. 47, 52 (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, 168 N.H. at 51. 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. Id.
at 48. The trial court dismissed the plaintiff’s claim, holding
that the school district was entitled to immunity under RSA 507-
B:5. Id. 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. Id. at 51-52.
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.” Id. at 51. 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.” Id. at 50.
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., 168 N.H. 143,
147 (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, 2011 WL 6371792, 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, 2015 WL 3484912, 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. Id.
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, 2015 WL
3484912. 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
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 2015 WL 3484912, 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, 2014 WL 1794895, 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.