UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAN D

GERARD BOULANGER,

NH 06-cv-00308-ECT

v . RI MC 07-23 T

ROBERT GILBERT, et al .

ORDER AND MEMORANDUM GRANTING

FEDERAL DEFENDANT'S MOTION TO DISMIS S

In October of 2004, federal prisoner Gerard Boulanger was

convicted of armed robbery involving a controlled substance,

possession with intent to distribute a controlled substance, and

being a felon in possession of a firearm . See U .S . v . Boulanaer ,

444 F .3d 76 (lst Cir . 2006) . On August 21, 2006, Boulanger

brought this § 1983 action, pro se, in the District Court of New

Hampshire against ten federal and state prison employees,

claiming that he was mistreated during his eighteen month

pretrial detention at the Strafford County House of Corrections .

See Nov . 15, 2006 Report and Recommendation by United States

Magistrate Judge James R . Muirhead (D . N .H . Docket No . 5) at 1 .

Some of Boulanger's claims and all of his claims against two

of the defendants were dismissed by Judge DiClerico, in part, on

the ground that Bivens claims could not be asserted against

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federal officials acting in their official capacities, becaus e

there is no vicarious liability under Bivens . See D . N .H . Docket

No . 16 . Defendant Robert Gilbert, described in the complaint as

the Director of the United States Marshal Service for th e

District of New Hampshire, has moved to dismiss the claims made

against him in his individual capacity, on the ground that he was

not the Director of the Marshal Service at the time the alleged

mistreatment took place . See Memorandum of Law in Support of

Federal Defendants' Motion to Dismiss (D . N .H . Docket No . 27-2)

at 3 . Gilbert has submitted a declaration in support of his

motion to dismiss from Gary DiMartino, Gilbert's successor,

showing that Gilbert left the Marshal's Service almost ten years

before Boulanger's pretrial detention began . See Declaration of

Gary DiMartino in Support of Federal Defendants' Motion to

Dismiss (D . N .H . Docket No . 27-6) at 2 .

Boulanger concedes that Gilbert was erroneously named as

Director ; and, in an attempt to correct the error, filed a motion

to add Gary DiMartino as a party to the action . See Plaintiff's

Objection/Motion to Amend (D . N .H . Docket No . 30) . Boulanger's

motion to amend was denied by Magistrate Judge Muirhead, based on

the prior ruling that Bivens claims could not be asserted against

federal officials in their official capacities . See D . N .H .

Docket . Since then, all of the sitting judges in the District of

New Hampshire have recused themselves from this case, and th e

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case has been transferred to this Court . See Order of Recusal

(D . N .H . Docket No . 35) ; Procedural Order (D . N .H . Docket No .

38) .

Because there are no allegations that Gilbert participated

in the alleged mistreatment of Boulanger ; and, because it is

undisputed that Gilbert was not even employed by the Marshal's

Service at the time, Gilbert's motion to dismiss is granted .

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