Doiron v. Lemay et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Arthur Doiron
v. Civil No. 16-cv-326-PB
Robert Lemay et al.
O R D E R
Plaintiff Arthur Doiron brought suit, under 42 U.S.C.
§ 1983, against New Hampshire State Prison Corrections Officers
Glenn Nimirowski, Jason Caruso, and Robert Lemay. Presently in
this case are claims alleging that defendants used excessive
force against Doiron, failed to intervene to protect plaintiff
from the use of excessive force, and otherwise failed to protect
Doiron, in violation of Doiron’s rights accruing under the
Eighth Amendment and state negligence laws. See Oct. 26, 2016
R. & R. (Doc. No. 5), at 5 (approved by Dec. 16, 2016 Order
(Doc. No. 10); Oct. 26, 2016 Order (Doc. No. 6), at 2.
Before the court is defendants’ motion to dismiss (Doc. No.
9), filed pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure, asserting that Doiron’s complaint
fails to state a federal claim upon which relief can be granted
and that the court lacks jurisdiction over the pendant state law
claims. Plaintiff objects. See Doc. No. 29. The motion to
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dismiss has been referred to the undersigned magistrate judge
for proposed findings of fact and a recommendation as to
disposition. See LR 72.1.
Discussion
In its October 26, 2016 Report and Recommendation (“R&R”)
(Doc. No. 5), which the district judge approved, see Dec. 16,
2016 Order (Doc. No. 10), at 1, the court found that the
plaintiff’s allegations, and all reasonable inferences from
those allegations, construed liberally, were sufficient to state
claims for relief, as well as to warrant exercising the court’s
supplemental jurisdiction over plaintiff’s state law claims.
The defendant’s arguments do not show that the court’s approval
of that Report and Recommendation was infected with any manifest
error of law or fact, and defendant’s motion to dismiss does not
otherwise persuade the court to reconsider that finding.
Accordingly, the district judge should deny defendants’ motion
to dismiss (Doc. No. 9).
Conclusion
For the foregoing reasons, the district judge should deny
the defendants’ motion to dismiss (Doc. No. 9). Any objections
to this Report and Recommendation must be filed within fourteen
days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2).
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The fourteen-day period may be extended upon motion. Failure to
file specific written objections to the Report and
Recommendation within the specified time waives the right to
appeal the district court’s order. See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R. Civ. P.
72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
July 25, 2017
cc: Arthur Doiron, pro se
Elizabeth A. Lahey, Esq.
Scott Edward Sakowski, Esq.
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