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. 2009 DNH 195 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 42 U.S.C. § 1983. 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 28
U.S.C. §§ 1331 (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, 548 F.3d 50, 56 (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 ., 335 F.3d 15, 19 (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., 474 F.3d
16, 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, 322 F.3d 97, 102 (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 9 DNH 017, 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, 430 F.3d 483, 488
(1st Cir. 2005) (quoting Whitley v. Albers, 475 U.S. 312, 320
(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 " Id. (quoting Whitley, 475 U.
at 320-21, and Hudson v. McMillian, 503 U.S. 1, 7 (1992)). In
answering this question, "the subjective motivations of the
individual officers are of central importance." Graham v.
Connor, 490 U.S. 386, 398 (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, 503 U.S. at 7; Whitley, 475 U.S. at
321.
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, 397 F.3d 1, 5 (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, 162 F.3d
135, 144 (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, 498 F.3d 9, 17 (1st Cir. 2007);
10 made clear that summary judgment cannot be defeated by "rank
speculation." Enica v. Principi, 544 F.3d 328, 336 (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, 503 U.S.
at 7. 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, 548 F.3d at 56 (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, 365 F.3d 181 (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, 503 U.S. at 7 (guoting Whitley, 475 U.S. at 321); see
also Wysong v. City of Heath, 260 Fed. Appx. 848, 858 (6th Cir.
2008) (unpublished) (rejecting a similar argument in a seizure
case). Moreover, the excessive force standard11 reguires that
v. County of Orange, 351 F.3d 410 (9th Cir. 2003) (seizure response resulting in broken ribs); Frazell v. Flanigan, 102 F.3d 877 (7th Cir. 1996) (seizure response resulting in possible fractured skull and severe cuts), abrogation on other grounds recognized by McNair v. Coffey, 279 F.3d 463 (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, 429 U.S. 97, 104 (1976); see also Hudson, 503 U.S. at 9 (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." Id. 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, 475 U.S. at 322. 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, 556 F.3d 484, 498
(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, 260 Fed.
Appx. at 858 (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, 490 U.S. at 397.
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, 532
F.3d 1270, 1276 (11th Cir. 2008); Davis v. Goord, 320 F.3d 346,
352 (2d Cir. 2003); Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.
2003); Thaddeus-X v. Blatter, 175 F.3d 378, 386-87 (6th Cir.
1999) (en banc); Cossette v. Poulin, 2008 DNH 162, 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, 435
F.3d 1252, 1264 (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, 948 F.2d 517, 521 (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, 544 F.3d at 336.
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, 449 F.3d 682, 685 (5th Cir. 2006)
(guoting Crawford-El v. Britton, 93 F.3d 813, 826 (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, 175 F.3d at 398.
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, 334 Fed.
Appx. 341, 343 (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, 610 F.2d 16, 18 (1st Cir. 1979); see also
Starr, 334 Fed. Appx. at 342; Jackson v. Fair, 846 F.2d 811, 920
(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, 400 F.3d 1001, 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, 618 F.2d 888, 892 (1st Cir. 1980) (citing
18 McDonald, 610 F.2d at 18), 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, 37 F.3d 700,
711 (1st Cir. 1994); Ferranti, 618 F.2d at 892. 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, 657 F.2d 468,
476 (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., 312 F.3d 503, 511
(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, 158 N.H. 723, 728 (2009). The conduct must go "beyond
all possible bounds of decency." Id. at 729.
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, 484 U.S. 343, 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." Id. 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, 81 F.3d 1182, 1192 (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.