UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Robert McCluskey

v. Civil No. 05-cv-052-JD

Opinion No. 2006 DNH 049

PrimeCare Medical, Inc., et al.

O R D E R

Robert McCluskey brings civil rights claims under 42 U.S.C.

§ 1983 and related state law claims against PrimeCare Medical,

Inc., Rockingham County, the Rockingham County Department of

Corrections, Rockingham County House of Corrections

Superintendent Albert Wright, Josephine M. Meador, M.D., and

Jonathan Jaffe, M.D., arising from the circumstances of

McCluskey’s medical care while he was incarcerated at the

Rockingham County Jail. Dr. Meador and Dr. Jaffe move for

summary judgment. McCluskey filed an assented-to motion to amend

his complaint and objects to summary judgment. 

After the motions for summary judgment were filed, discovery

deadlines in this case were extended, and the trial was continued

to the trial period beginning on January 23, 2007. PrimeCare, 

and the Rockingham County defendants were granted sixty

additional days within which to file motions for summary

judgment, making their motions due by May 22, 2006. Dr. Jaffe

filed a motion for leave to file a supplemental statement of

undisputed material facts.

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I. Motion to Amend Complaint

McCluskey moves to amend his complaint to eliminate his

claim that the defendants conspired to violate his civil rights. 

He also adds PrimeCare Medical, Inc., as a defendant to his civil

rights claim against Rockingham County, Rockingham County

Department of Corrections, and Superintendent Albert Wright. He

represents that the defendants assented to his motion to amend.

Federal Rule of Civil Procedure 15(a) provides that after

responsive pleadings are served, a plaintiff may amend the

complaint “only by leave of court or by written consent of the

adverse party.” When a party moves to amend, “leave shall be

freely given when justice so requires.” Fed. R. Civ. P. 15(a);

see also States Res. Corp. v. Architectural Team, Inc., 433 F.3d

73, 83 (1st Cir. 2005). Ordinarily, however, if a motion to

amend the complaint is filed while motions for summary judgment

are pending, “‘the proposed amendment must be not only

theoretically viable but also solidly grounded in the record.’” 

Gonzalez-Perez v. Hosp. Interamericano De Medicina Avanzada, 355

F.3d 1, 5 (1st Cir. 2004) (quoting Watson v. Deaconess Waltham

Hosp., 298 F.3d 102, 109 (1st Cir. 2002)).

Because the proposed amendments do not alter the issues

raised in the motions for summary judgment and the defendants

assented to the proposed amendments, the motion is granted. The

court notes, however, that McCluskey continues to name “John and

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1McCluskey, who is represented by counsel, alleges a catchall claim that the defendants violated “the rights otherwise

guaranteed to the plaintiff under the laws and constitutions of

the State of New Hampshire and the United States.” The lack of

specificity of such a claim undermines its effectiveness.

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Jane Doe” as defendants in this action. McCluskey shall identify

and serve those defendants within twenty days of the date of this

order or John and Jane Doe will be dismissed from this case,

provided, however, that McCluskey may file a motion for an

extension of time in which he provides good cause for allowing

additional time to name the John and Jane Doe defendants. See

Figueroa v. Rivera, 147 F.3d 77, 82-83 (1st Cir. 1998).

II. Motions for Summary Judgment

In the first claim of the amended complaint, McCluskey

alleges that Dr. Meador, Dr. Jaffe, “and John and Jane Does”

violated his civil rights by failing to provide adequate medical

care to him and being deliberately indifferent to his rights

while he was incarcerated at the Hillsborough County House of

Corrections. His second claim is that PrimeCare Medical, Inc.,

Rockingham County, Rockingham County Department of Corrections,

and Albert Wright failed to provide “adequate and constitutional

medical care” and failed to train and supervise their agents and

employees to provide such care. McCluskey also alleges state law

claims of negligence, battery, intentional and negligent

infliction of emotional distress, and medical negligence.1 Dr.

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Meador and Dr. Jaffe each move for summary judgment on the claims

against them. 

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. 

“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). Factual

evidence provided by experts for purposes of supporting or

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opposing summary judgment must also comply with Rule 56(e). 

Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d

668, 681 (1st Cir. 1994); Hayes v. Douglas Dynamics, Inc., 8 F.3d

88, 92 (1st Cir. 1993). 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 Axucarera, 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.

Dr. Meador provides her affidavit with a jurat, stating that

she “acknowledged the foregoing instrument to be true and

accurate to the best of her knowledge and belief.” Dr. Meador

provides a copy of her contract with PrimeCare but no medical

records or other documentary support for her affidavit. 

McCluskey’s affidavit provides his recollection of his treatment

by the defendants, without any supporting documentation or

records, and is based on “the best of my knowledge and belief.” 

McCluskey also relies on the expert report of Joe Goldenson,

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M.D., who provided a sworn affidavit that he is an expert hired

by McCluskey’s counsel and stated: “I have read the report I

prepared in this case and declare that the opinions,

observations, and conclusions therein are in fact true.” Pl. Ex.

2. Dr. Goldenson’s jurat is also based on his “knowledge and

belief.” Only Dr. Jaffe provided an affidavit and a record that

complies with Rule 56(e).

The court will not parse through Dr. Meador’s affidavit to

find statements apparently based on personal knowledge that would

be competent for purposes of summary judgment. Further, the lack

of record citations, with copies of the pertinent records or

documents, leaves Dr. Meador’s affidavit short of the Rule 56(e)

standard. Therefore, Dr. Meador’s motion for summary judgment is

denied due to her failure to provide proper support as required

by Rule 56(e). This denial is without prejudice to refile a

properly supported motion.

Dr. Jaffe challenges Dr. Goldenson’s opinion that Dr. Jaffe

acted with deliberate indifference to McCluskey’s serious medical

needs, contending that the opinion is not competent as to his

state of mind. The court agrees that Dr. Goldenson’s opinion

that Dr. Jaffe was deliberately indifferent is not properly

supported. Although Dr. Goldenson lists facts and opinions, he

does not sufficiently tie the facts and opinions to his

conclusion of deliberate indifference. See, e.g., Cook v.

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Sheriff of Monroe County, 402 F.3d 1092, 1112 (11th Cir. 2005).

Because Dr. Jaffe has now moved to supplement the factual record

in this case, however, it appears that his motion is also not

ripe for consideration as filed. Therefore, Dr. Jaffe’s motion

is also denied without prejudice to refile a motion that includes

all properly supported material facts.

The court further notes that motions for summary judgment at

this stage in the case appear to be premature. The defendants’

expert disclosure deadline is June 1, 2006. The John and Jane

Doe defendants are yet to be identified and served. Therefore,

the deadline for filing motions for summary judgment is extended

for all parties until September 1, 2006.

Conclusion

For the foregoing reasons, the plaintiff’s assented to

motion to amend the complaint (document no. 37) is granted. 

Defendant Dr. Jaffe’s motion for leave to file a supplemental

statement (document no. 40) is terminated. 

Defendant Josephine Meador’s motion for summary judgment

(document no. 25) and defendant Jonathan Jaffe’s motion for

summary judgment (document no. 24) are denied without prejudice

to file properly supported motions within the extended deadline. 

The deadline for all motions for summary judgment is September 1,

2006. 

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Renewed motions for summary judgment and objections to those

motions shall comply with Local Rule 7.2(b) and Federal Rule of

Civil Procedure 56(e), including being accompanied by affidavits

made upon the affiant’s personal knowledge and with properly

submitted records to support factual statements. Affidavits of

expert witnesses shall comply with Rule 56(e) and Federal Rule of

Evidence 702. Summary judgment is an important process that

enables the parties and the court to narrow the issues in a case. 

It is the court’s intention that all parties in this case be

given a full opportunity to present their motions and objections

in compliance with Rule 56 so that the resources of the parties

and the court can be used productively in narrowing the issues

and, if appropriate, the claims.

 The plaintiff shall identify and serve the defendants listed

as Jane and John Doe within twenty days of the date of this

order, unless an extension of time is sought and granted, or the

claims against those defendants will be dismissed without

prejudice.

In light of the plaintiff’s expert’s report, the opinions

expressed by his treating doctors, the circumstances of the

plaintiff’s release from the Rockingham County House of

Corrections, and the expense of pursuing and defending litigation

of this type, the court expects the parties to engage in good

faith settlement negotiations or mediation at the appropriate

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time and to use their best efforts to resolve the claims brought

by the plaintiff before unnecessary time and resources are spent

litigating those claims.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

April 25, 2006

cc: Kenneth C. Bartholomew, Esquire

Steven E. Hengen, Esquire

Jonathan A. Lax, Esquire

Maureen Raiche Manning, Esquire

Peter W. Mosseau, Esquire

Lawrence A. Vogelman, Esquire

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