UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Frank Philbrook,

Plaintiff

v. Civil No. 08-cv-166-SM

Opinion No. 2009 DNH 182

Jason Lemere, Sean Mellish,

Joseph Brookens, John Milliken,

and Matthew Lockhart,

Defendants

O R D E R

In this case, Frank Philbrook is suing six officers of the

Sullivan County Department of Corrections (“DOC”) for injuries he

suffered when one of them punched him in the head during a

jailhouse riot. Before the court is defendants’ motion for

summary judgment. Plaintiff has not objected. For the reasons

given, defendants’ motion for summary judgment is granted.

A summary judgment motion should be granted when the record

reveals “no genuine issue as to any material fact and . . . the

moving party is entitled to a judgment as a matter of law.” FED.

R. CIV. P. 56(c). “The object of summary judgment is to ‘pierce

the boilerplate of the pleadings and assay the parties’ proof in

order to determine whether trial is actually required.’ ” Dávila

v. Corporación de P.R. para la Diffusión Pública, 498 F.3d 9, 12

(1st Cir. 2007) (quoting Acosta v. Ames Dep’t Stores, Inc., 386

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F.3d 5, 7 (1st Cir. 2004)). “Once the moving party avers an

absence of evidence to support the non-moving party’s case, the

non-moving party must offer ‘definite, competent evidence to

rebut the motion.’ ” Meuser v. Fed. Express Corp., 564 F.3d 507,

515 (1st Cir. 2009) (citing Mesnick v. Gen. Elec. Co., 950 F.2d

816, 822 (1st Cir. 1991)). When ruling on a party’s motion for

summary judgment, a trial court “constru[es] the record in the

light most favorable to the nonmovant and resolv[es] all

reasonable inferences in [that] party’s favor.” Meuser, 564 F.3d

at 515 (citing Rochester Ford Sales, Inc. v. Ford Motor Co., 287

F.3d 32, 38 (1st Cir. 2002)).

At the relevant time, Philbrook was incarcerated in the

Sullivan County House of Corrections, where, on April 28, 2005, a

“small scale prison riot” broke out. (Mellish Aff. ¶ 4.) 

Because of his involvement in the riot, Philbrook was extracted

from his cell during the early morning hours of April 29. 

Philbrook charged the extraction team when he exited his cell, at

which point correctional officers took him to the floor, placed

him in restraints, and escorted him from the tier on which his

cell was located. While Philbrook was being escorted away, he

was punched once in the head. (Milliken Aff. ¶ 18.)

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At the time of the incident, defendant Milliken was employed

as a Captain by the DOC, and served as the leader of the

extraction team. Defendants Mellish and Lemere, both sergeants,

were also members of the extraction team. Defendant Lockhart was

a correctional officer, and a member of the extraction team. 

Defendant Brookens was a correctional officer, but because he was

not yet fully trained, he was not a member of either the

extraction team or the tactical team that had been called in to

back-up the extraction team; he merely observed Philbrook’s

extraction from a catwalk overlooking the tier on which

Philbrook’s cell was located.

According to their affidavits, none of the five defendants

punched Philbrook (see Milliken Aff. ¶ 21; Mellish Aff. ¶ 16;

Lemere Aff. ¶ 15; Lockhart Aff. ¶ 18; Brookens Aff. ¶ 15); four

of them never saw Philbrook being punched (see Mellish Aff. ¶¶

15-16; Lemere Aff. ¶ 13; Lockhart Aff. ¶ 15; Brookens Aff. ¶ 12);

and none of them has ever learned the identity of the officer who

did punch Philbrook (see Milliken Aff. ¶ 20; Mellish Aff. ¶ 17;

Lemere Aff. ¶¶ 13-14; Lockhart Aff. ¶¶ 16-17; Brookens Aff. ¶¶

13-14). Defendant Milliken did see the punch, on videotape, but

was “unable to identify who threw the punch, as the team members

were all in full tactical gear which included helmets and face

shields.” (Milliken Aff. ¶ 19.)

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Philbrook claims that he was subjected to excessive force,

in violation of the United States Constitution, when he was

punched in the head by a correctional officer for no reason other

than to inflict pain. Each named defendant argues that he is

entitled to summary judgment because it is undisputed that he did

not punch Philbrook. They are correct. 

Each defendant has testified, via affidavit, that he did not

punch Philbrook. For his part, Philbrook acknowledged, in his

complaint, his inability to identify his assailant, but avered

that he would be able to do so after viewing a videotape of the

riot made by the Claremont Police Department. Defendant Milliken

has, in fact, viewed that videotape. Defendants claim, on

information and belief, that Philbrook has also seen the tape. 

However, and this is determinative, Philbrook has produced no

evidence to counter the affidavits of the five defendants. Thus,

there is affirmative evidence in the record that none of the five

of them punched Philbrook, and no evidence that any of them did

punch him. On that record, there is simply no trial-worthy

factual issue. As plaintiff has not contested defendants’

factual assertions, those assertions are taken as true. The

undisputed factual record, then, entitles each defendant to

judgment as a matter of law.

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For the reasons given, defendants’ motion for summary

judgment (document no. 25) is granted. The clerk of the court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

December 2, 2009

cc: Frank Philbrook, pro se

Corey M. Belobrow, Esq.

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