UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Robert Reid

v. Civil No. 04-cv-369-JD

Phil Stanley, et al.

O R D E R

Robert Reid, proceeding in forma pauperis and pro se, brings

equal protection and due process claims, pursuant to 42 U.S.C. §

1983, against Phil Stanley, Jane Coplan, Greg Crompton, Denise

Heath, and Kim Lacasse, arising from the alleged effect on his

opportunity for parole due to his incarceration in Connecticut. 

Reid sought both injunctive relief, to return him to New

Hampshire, and monetary damages. Because he is now back in a New

Hampshire prison, that request is moot. The defendants move for

summary judgment, and Reid also moves for summary judgment.

Background

Following preliminary review of Reid’s complaint, the

magistrate judge recommended that Reid stated claims of equal

protection and due process violations actionable under 42 U.S.C.

§ 1983. With respect to his equal protection claim, the

magistrate judge found that “Reid alleges that defendants have

abridged his right to equal protection by denying him

classifications, level reductions, and vocational programs

afforded other New Hampshire inmates” which has prevented him

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from meeting the conditions imposed by the parole board and from

demonstrating his readiness for parole. Rep. & Rec. at 10 (doc.

no. 12). The magistrate determined that the rational basis test

applied to that claim and that Reid’s “allegations may well give

rise to viable claims under the Fourteenth Amendment’s equal

Protection Clause against defendants Stanley, Heath, Lacasse,

Coplan and Compton.” Id. at 14. With respect to Reid’s due

process claim, the magistrate concluded that Reid failed to state

a due process violation arising from his transfer to the prison

in Connecticut but that he had alleged a due process claim based

upon a liberty interest in eligibility for minimum security

classification against the same defendants. The magistrate

recommended that Reid’s claims against two other defendants and

his official capacity claims be dismissed. The court approved

the report and recommendation after considering Reid’s objection.

Reid also sought a temporary injunction and a protective

order to provide him with the same classification procedures that

were used in New Hampshire and to restrict the defendants’

options in transferring him to other prisons. The motion was

referred to the magistrate judge who held an evidentiary hearing. 

Following that hearing, the magistrate issued a report and

recommendation in which he recommended that Reid’s motion be

denied. The magistrate’s report and recommendation was approved

by the court after considering Reid’s objection.

Reid filed an amended complaint on July 19, 2005. Despite

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the previous dismissal of his official capacity claims and claims

against Thomas Winn and John Eckert, Reid realleged those claims

in his amended complaint. In his amended complaint, Reid alleged

that he “is being held under conditions which are violative of

his fourteenth Amendment of the UNITED STATES CONSTITUTIONS Equal

Protection Clause and the Due Process Clause therein.” The

defendants’ filed their answer to the amended complaint on July

28, 2005. 

Reid’s amended complaint was not reviewed by the magistrate

judge. The court has reviewed the amended complaint, and only

those claims against the defendants that were allowed based on

the magistrate judge’s report and recommendation on Reid’s

initial complaint, which was approved by the court, are allowed

here. All other claims against those defendants and all claims

against Eckert and Winn are dismissed. 

The defendants filed a motion for summary judgment on March

17, 2006, stating that Reid alleges only “that the Defendants

violated his right to Due Process under the Fourteenth Amendment

to the U.S. Constitution by housing him in an out-of-state

facility where he was unable to be considered for parole.” Mot.

for S.J. at 1. Reid filed an opposition to the defendants’

motion for summary judgment but did not serve the defendants. He

also filed his own motion for summary judgment but did not serve

that motion on the defendants. He states in a letter to the

clerk of court that he was unable to serve the defendants with

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either filing because he could not obtain copies due to a lack of

funds in his prison account. He asks the court to forward copies

to the Assistant Attorney General representing the defendants in

this case. Copies were not forwarded to the Assistant Attorney

General. Because Reid’s filings were electronically docketed and

filed when they were received by the clerk’s office, those

filings are electronically available to the Assistant Attorney

General. 

Motions for Summary Judgment

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record. 

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See id. at 255. 

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“Under Federal Rule of Civil Procedure 56(e), on summary

judgment, the parties in their supporting affidavits ‘shall set

forth such facts as would be admissible in evidence, and shall

show affirmatively that the affiant is competent to testify to

the matters stated therein. Sworn or certified copies of all

papers or parts thereof referred to in an affidavit shall be

attached thereto or served therewith.’” Hoffman v. Applicators

Sales & Serv., Inc., 439 F.3d 9, 14 (1st Cir. 2006). An

affidavit must be based upon personal knowledge of the facts to

be considered for purposes of summary judgment. An affidavit

based on “knowledge and belief” does not meet the Rule 56(e)

standard. See, e.g., Perez v. Volvo Car Corp., 247 F.3d 303,

315-16 (1st Cir. 2001); Lopez-Carrasquillo v. Rubianes, 230 F.3d

409, 414 (1st Cir. 2000); Lopez v. Corporacion Azucarera, 938

F.2d 1510, 1515-16 & n.11 (1st Cir. 1991); Mas Marques v. Digital

Equip. Corp., 637 F.2d 24, 29 (1st Cir. 1980); City of Waukegan

v. Martinovich, 2005 WL 3465567, at *3 n.2 (N.D. Ill. Dec. 16,

2005). Further, “the requisite personal knowledge must concern

facts as opposed to conclusions, assumptions, or surmise.” 

Perez, 247 F.3d at 316.

Although the defendants filed a plethora of exhibits, they

failed to properly authenticate those documents or cite to them

to support the factual bases of their motion. The affidavit of

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1For example, the affidavit provides no basis for Lacasse’s

personal knowledge of Connecticut’s classification system or the

reasons or bases for Reid’s classification there. Further,

Lacasse acknowledges that her first involvement with Reid

occurred in 2003 but she nevertheless states facts about Reid’s

conduct and classification status that occurred before that date.

To the extent Lacasse’s affidavit is merely repeating information

from documents she has reviewed for purposes of providing her

affidavit, that information is hearsay. She must, at a minimum,

cite to and provide copies of the pertinent documents.

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Kimberly Lacasse, which is cited in the defendants’ statement of

facts, is based upon her “knowledge and belief,” which is

insufficient to satisfy the personal knowledge requirement of

Rule 56(e), and also does not cite to the exhibits included with

the defendants’ motion.1 In addition, as noted above, the

defendants mistakenly interpret Reid’s complaint to raise only a

due process claim, making no mention of his equal protection

claim; assert qualified immunity in a cursory manner that is

insufficient to allow appropriate consideration by this court;

and fail to mention a recent Supreme Court case that is arguably

pertinent to Reid’s claims, see Wilkinson v. Austin, 125 S. Ct.

2384 (2005). 

The defendants have not responded to Reid’s opposition to

their motion for summary judgment or filed an objection to Reid’s

motion for summary judgment. Reid acknowledges that he did not

serve the defendants’ counsel with either of his filings, as he

is required to do. Fed. R. Civ. P. 5. Although Reid’s filings

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2Reid’s affidavit does not provide citations to documents in

the record to support his statements.

3Although the complaint includes a statement that the facts

alleged are true, that statement is limited to “the best of my

belief and personal knowledge.” To the extent Reid’s factual

allegations are based on his belief, rather than his personal

knowledge, those allegations are not competent to support a

motion for or opposition to summary judgment.

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were docketed and electronically filed by the clerk’s office, it

is not clear whether the defendants’ counsel is aware of Reid’s

filings. 

Reid’s filings are also deficient. Reid’s objection is

supported by an affidavit that is sworn to the “best of his

knowledge and belief,” and no affidavit was filed in support of

his motion for summary judgment. As is explained above, an

affidavit based upon “knowledge and belief” does not satisfy the

personal knowledge requirement of Federal Rule of Civil Procedure

56(e).2 Reid also relies on citations to his complaint, which is

not competent to support or oppose summary judgment.3 Id.

Conclusion

For the foregoing reasons, the defendants’ motion for

summary judgment (document no. 34) is denied without prejudice to

file an appropriately developed and supported motion on or before

May 15, 2006. The plaintiff’s motion for summary judgment

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(document no. 35) is also denied without prejudice to file an

appropriately developed and supported motion on or before May 15,

2006. Summary judgment is a useful procedure to narrow the

issues, and if appropriate, the claims that are being made. It

is the court’s intention that all parties have an opportunity to

file summary judgment motions and objections that comply with

Rule 56. 

Reid is reminded that he is obligated to serve the

defendants with copies of his filings, although he may, if

necessary, request the assistance of the court in a separate

motion.

Reid’s request for injunctive relief to return him to New

Hampshire is denied as moot.

Only those claims against the defendants that were allowed

based on the magistrate judge’s report and recommendation on

Reid’s initial complaint, which was approved by the court, are 

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allowed here. All other claims against those defendants and all

claims against Eckert and Winn are dismissed.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

April 27, 2006

cc: Robert A. Reid, pro se

Andrew B. Livernois, Esquire

Mary E. Maloney, Esquire

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