The 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.
2