UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Rhonda S. Abbott,

Plaintiff

v. Civil No. 05-cv-127-SM

Opinion No. 2008 DNH 009

Town of Salem, New Hampshire;

Prints Plus, Inc.; Control

Security Services, Inc.; Louis

Currier; Jeffrey Ouellette;

Kristin Fili; Greg Weeden; Nicholas

J. Tela, and Denise L. Smith,

Defendants

O R D E R

In her third amended complaint (document no. 59), plaintiff

asserts clams under the Americans With Disabilities Act (“ADA” or

“the Act”) and the common law of New Hampshire. Before the court

are motions for summary judgment filed by Control Security

Services, Inc. (“Control”) and the Town of Salem, Louis Currier,

Jeffrey Ouellette, and Kristin Fili (“the Salem defendants”). 

Both motions are duly opposed. For the reasons given, Control’s

motion is granted in full; the Salem defendants’ motion is

granted as to Count VIII (plaintiff’s ADA claim); and the court

declines to exercise supplemental jurisdiction over plaintiff’s

state-law claims against the Salem defendants.

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Summary Judgment Standard

Summary judgment is appropriate 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

F.3d 5, 7 (1st Cir. 2004)). To defeat a motion for summary

judgment, “the non-moving party ‘must set forth specific facts

showing that a genuine issue of material fact exists as to each

issue upon which she would bear the ultimate burden of proof at

trial.’” Torres-Negron v. Merck & Co., 488 F.3d 34, 39 (1st Cir.

2007) (quoting Santiago-Ramos v. Centennial P.R. Wireless Corp.,

217 F.3d 46, 53 (1st Cir. 2000)). To make that showing, “the

non-moving party may not rest merely upon the allegations or

denials in its pleading.” Id. (citation omitted). When ruling

on a party’s motion for summary judgment, the court must view the

facts in the light most favorable to the nonmoving party and draw

all reasonable inferences in that party’s favor. See id. (citing

Rodríguez v. SmithKline Beecham, 224 F.3d 1, 5 (1st Cir. 2000)).

Case 1:05-cv-00127-SM Document 113 Filed 01/16/08 Page 2 of 18
1 Specifically, she has no hearing in her right ear and

approximately thirty percent discrimination hearing in her left

ear. (Pl.’s Obj. to Salem Defs.’ Mot. Summ. J. (document no.

106), Ex. 1 (Abbott Aff.), at 4.)

2 While Abbott now presents an affidavit in which she states

that she did not hear Smith order her out of the store (Abbott

Aff., at 3), she is bound by her admissions that she understood

3

Background

Rhonda Abbott’s hearing is substantially impaired.1 On

November 3, 2001, she went to Prints Plus, Inc. (“Prints Plus”),

a store in the Mall at Rockingham Park (“the mall”), to pick up a

painting she had left for framing. The clerk at Prints Plus,

Denise Smith, told Abbott that she, Smith, would have to search

through all the packages in the back room to find Abbott’s

painting. When Smith went into the back room to look, Abbott

followed her. Smith asked Abbott to return to the front of the

store, which she did. According to Smith, Abbott followed her

into the back room a second time, and spoke to her in an

increasingly loud and abusive manner. Abbott admits that she

followed Smith into the back room once, but does not mention a

second time, and says she did not raise her voice. At some

point, Abbott asked Smith to provide a pen and paper, so they

could communicate in writing. Smith did not do so. Ultimately,

Smith ordered Abbott to leave the Prints Plus store, and Abbott

understood Smith’s order, but refused to comply with it.2 

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Smith’s command (Control’s Mot. Summ. J. (document no. 95), Ex.

10 (Pl.’s Admis.) ¶ 13), and that she refused to comply with it

(id. ¶¶ 16, 18). 

By order dated April 27, 2007 (document no. 87), the

Magistrate Judge deemed admitted all the requests for admissions

served by Control on November 27, 2006, due to plaintiff’s

failure to serve a written answer or objection within the time

limit established by Rule 36(a) of the Federal Rules of Civil

Procedure. 

3 Officer Currier’s uncontroverted affidavit testimony on

these points is further supported by plaintiff’s admissions. 

(See Pl.’s Admis. ¶¶ 4-7.) 

4

When Abbott refused to leave the store, Smith telephoned for

assistance. As a general matter, mall security is provided by

Control, under an agreement with the mall’s owner. In addition,

the mall’s owner contracts with the Town of Salem (“the Town”)

for off-duty police officers, to provide additional security. 

When performing private police details at the mall, Salem police

officers do not take directions or receive compensation from

Control, and do not act as employees of Control. (Currier Aff.

¶¶ 4-7.)3

In response to Smith’s call for assistance, Salem police

officer Louis Currier arrived at the Prints Plus store. Currier

says he was in uniform; Abbott says he was wearing a white shirt,

and that she observed nothing that identified him as a police

officer. After some conversation, Currier ordered Abbott to

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leave the store. (Pl.’s Admis. ¶ 14.) Abbott understood the

order but refused to comply with it. (Id. ¶¶ 15, 17, 19.) More

specifically, when Currier told Abbott to leave the store, she

responded by saying “[n]ot without my painting.” (Control’s Mot.

Summ. J., Ex. 13 (Abbott 5/9/07 dep.), at 103, 106 .) 

At approximately this point, Smith asked Currier to

communicate with her in writing. He declined to do so. However,

after Abbott told Currier that she wore a hearing aid, he looked

directly at her while speaking to her, to facilitate lip reading,

and used hand gestures. (Control’s Mot. Summ. J., Ex. 7.)

When Abbott refused to leave the store, Officer Currier took

out his handcuffs and, according to his contemporaneous police

report, told her that if she did not leave the store, she would

be arrested. After further conversation, Abbott said to Currier:

“Don’t arrest me. I’ll leave.” (Abbott 5/9/07 dep., at 105-06,

107-08). Currier responded by telling Abbott that it was too

late to avoid arrest. During that conversation, Abbott began to

back away from Currier. (Abbott 5/9/07 dep., at 107.) Currier

then reached for Abbott’s hands, in order to place the handcuffs

on her. Abbott and Currier agree that Currier forced Abbott to

the ground; Abbott says the action was essentially unprovoked

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while Currier says he took Abbott to the floor after she

attempted to run away from him. Both agree that when Currier

took Abbott to the floor, she struck her head on a fixture.

As Currier was handcuffing Abbott, Salem police officer

Jeffrey Ouellette arrived at Prints Plus. Currier and Ouellette

escorted Abbott from the store, through the mall, and to a Salem

police cruiser driven by Salem police officer Kristin Fili. 

Officer Fili transported Abbott to the Salem police station. As

they were escorting Abbott out of the mall, Currier and Ouellette

were joined by two employees of Control, Nicholas Tela and Greg

Weeden. Neither Tela nor Weeden nor any other Control employee

came into any physical contact with Abbott. (Pl.’s Admis. ¶¶ 1-

3.)

At the Salem police station, Abbott was booked and released

on bail. She alleges that while she was at the police station,

Fili and other Salem police officers taunted her and mocked her

hearing impairment.

On October 26, 2004, Abbott filed a complaint in the

District of Massachusetts, asserting ADA claims against Denise

Smith, Prints Plus, Control, Simon Property Group, and the Salem

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defendants. By order dated March 29, 2005, Judge Zobel dismissed

Abbott’s claims against all defendants, other than Prints Plus,

for improper venue and lack of personal jurisdiction. (Control’s

Mot. Summ. J., Ex. 16.) The court further noted that Prints Plus

had filed for bankruptcy after plaintiff filed her complaint and, 

consequently, declined to rule on Prints Plus’s motion to

dismiss. Instead, she administratively closed the case against

Prints Plus, subject to being reopened should the bankruptcy

code’s automatic stay be lifted.

Approximately one week after Judge Zobel dismissed

plaintiff’s case, and notwithstanding the court’s specific

reference to Prints Plus’s bankruptcy filing and the automatic

stay, plaintiff filed an identical complaint in this court,

listing Prints Plus as a defendant. The original complaint

contained five counts, and asserted claims only under the ADA. 

After three amendments, plaintiff’s complaint has grown to eleven

counts, including three ADA claims (against Prints Plus, Simon,

and the Town), four claims for assault, and four claims for

“unlawful arrest and false imprisonment.” By order dated March

12, 2007 (document no. 82), all claims against Simon, including

the ADA claim, were dismissed.

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4 By endorsed order dated October 23, 2006, the court

granted plaintiff’s motion to dismiss, without prejudice, her

claims against Tela (document no. 71).

8

Control and the Salem defendants now move for summary

judgment on all of the claims against them.

Discussion

A. Control’s Motion for Summary Judgment

In Count IV of her third amended complaint, plaintiff

asserts a claim of assault against Control, Currier, Ouellette,

Tela4 and Weeden based upon the manner in which she was taken to

the ground and handcuffed, and later walked through the mall in

handcuffs. In Count V, she asserts, against the same defendants,

a claim she labels “unlawful arrest and false imprisonment.” 

Control moves for summary judgment on a variety of grounds,

two of which are sufficient to justify awarding the relief it

seeks: (1) it was not vicariously liable for the conduct of

Officers Currier and Ouellette; and (2) none of its own employees

ever assaulted or arrested plaintiff. For her part, plaintiff is

bound by her admissions that: (1) Officers Currier and Ouellette

were neither employees of Control nor directed by Control in the

conduct of their duties; and (2) no Control employee ever came

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into physical contact with her (see also Abbott 5/18/07 dep., at

170, 172). Moreover, plaintiff has testified that neither Tela

nor Weeden spoke to her at all. (Abbott 5/9/07 dep., at 124;

Abbott 5/18/07 dep., at 170, 172.) In the face of those

admissions and undisputed facts, plaintiff attempts to rescue her

claims against Control with the following argument: (1) Simon

contracted with Control to provide security at the mall; (2)

Control’s employees, Tela and Weeden, ratified and participated

in the actions of Officers Currier and Ouellette by being present

at the time they occurred, thus making Control vicariously liable

for those actions.

Plaintiff’s ratification theory is drawn from New

Hampshire’s common law of agency. See, e.g., Fleet Bank–N.H. v.

Chain Constr. Corp., 138 N.H. 136, 139 (1993); Appeal of Sanborn

Reg’l Sch. Bd., 133 N.H. 513, 520 (1990). According to

established principles of agency:

For ratification of an act of an agent to occur, there

first must have been an attempt to act as agent. 

Connolly & a. v. Bank, 92 N.H. 89, 91 (1942). Stated

another way, “[a]n act, to be susceptible of

ratification, must be done at the time on the behalf of

the person who afterwards undertakes to ratify it.”

Saltmarsh v. Candia, 51 N.H. 71, 77 (1871).

Case 1:05-cv-00127-SM Document 113 Filed 01/16/08 Page 9 of 18
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Fleet Bank, 138 N.H. at 139 (parallel citations omitted). The

problem with plaintiff’s ratification theory is that she has

produced no evidence that Currier or Ouellette ever acted, or

attempted to act, as agents of Tela, Weeden, or Control, and

Control has produced undisputed evidence that Currier and

Ouellette were not its agents. Moreover, plaintiff has produced

no evidence that Tela, Weeden, or Control did or said anything

after the fact to ratify the actions of Currier and Ouellette. 

See Appeal of Sanborn, 133 N.H. at 520 (“We hasten to point out,

however, that implied ratification cannot be based solely on mere

inaction . . . .”). Thus, plaintiff’s ratification theory fails

as a matter of law.

Because none of the assertedly tortious acts in this case

were committed by agents acting on behalf of Control, and because

Control’s own agents neither committed nor caused to be committed 

any of the tortious acts plaintiff complains of, Control is

entitled to judgment as a matter of law on Counts IV and V. 

Moreover, as plaintiff has admitted that Weeden did nothing other

than walk with her and the Salem police officers from the Prints

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5 The court notes that plaintiff appears not to have filed

notice that she has served her complaint on Weeden. Ordinarily,

she would be granted time to correct that deficiency, but given

the undisputed factual record, and the resolution of the claims

against Control, any such effort necessarily would be futile.

11

Plus store to the entrance of the mall, Weeden is also entitled

to judgment as a matter of law on Counts IV and V.5

B. The Salem Defendants’ Motion for Summary Judgment

In Count VIII of her third amended complaint, plaintiff

asserts that the Town violated Title II of the ADA when Officers

Currier, Ouellette, and Fili denied her adequate assistance, to

compensate for her hearing impairment, both at the mall and at

the Salem police station. Specifically, she claims that because

she was denied adequate assistance, she “was assaulted, detained

without cause, and falsely imprisoned [and] subjected to great

indignities, humiliation and disgrace being compelled to walk,

handcuffed through the Mall in full view of the large crowd of

shoppers; thereby suffering mental and physical pain; requiring

medical and psychiatric treatment.” (Third Am. Compl. ¶ 37.) 

The assistance plaintiff claims to have been denied was the

opportunity to communicate with pen and paper, rather than

orally. 

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The Town moves for summary judgment on Count VIII, arguing

that the undisputed factual record demonstrates that even though

the officers chose not to communicate with plaintiff in writing,

she was capable of understanding them and did understand their

direction. As a consequence, they argue, she was not

discriminated against as a result of her disability. Plaintiff’s

objection to summary judgment on her ADA claim states, in its

entirety:

The Town of Salem violated the Americans with

Disabilities Act (ADA) in denying Abbott the means of

effective communication so that she could enjoy the

benefits of the Mall an[d] Prints [Plus]. Effective

communication is vital for those disabled by deafness. 

The record is replete with Abbott’s repeated requests

for effective communication and Smith, Currier and

Ouellette’s refusal in violation of Abbott’s rights

under the ADA.

(Pl.’s Obj. to Salem Defs.’ Mot. Summ. J., at 5.) Plaintiff has

not “set forth specific facts showing that a genuine issue of

material fact exists as to each issue upon which she would bear

the ultimate burden of proof at trial.” Torres-Negron, 488 F.3d

at 39. Consequently, her objection is facially insufficient to

defeat the Town’s motion for summary judgment. Nevertheless, the

court will address the merits of plaintiff’s ADA claim.

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Plaintiff’s ADA claim is based upon Title II of the Act

which provides:

Subject to the provisions of this subchapter, no

qualified individual with a disability shall, by reason

of such disability, be excluded from participation in

or be denied the benefits of the services, programs, or

activities of a public entity, or be subjected to

discrimination by any such entity.

42 U.S.C. § 12132. To prevail on a Title II claim, a plaintiff

must demonstrate:

(1) that [she] is a qualified individual with a

disability; (2) that [she] was either excluded from

participation in or denied the benefits of some public

entity’s services, programs, or activities or was

otherwise discriminated against; and (3) that such

exclusion, denial of benefits, or discrimination was by

reason of [her] disability.

Buchanan v. Maine, 469 F.3d 158, 170-71 (1st Cir. 2006) (quoting

Parker v. Universidad de P.R., 225 F.3d 1, 5 (1st Cir. 2000)).

Here, there is no dispute that plaintiff is a qualified

individual with a hearing disability. In her objection to

summary judgment, plaintiff seems to suggest that the “public

entity” at issue in her ADA claim is the mall, or the Prints Plus

store. However, because neither the mall nor the store qualifies

as a public entity under the ADA, see 42 U.S.C. § 12131(1), the

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6 Plaintiff also seems to suggest that the Town faces ADA

liability for the humiliation she suffered while being escorted

through the mall after her arrest. But, under the circumstances

of this case, as discussed below, that is not a cognizable injury

under the ADA. See Rosen v. Montgomery County, 121 F.3d 154, 158

(4th Cir. 1997). Similarly, she has not stated a cognizable ADA

claim based upon her treatment at the Salem police station; she

“does not assert that better communication would have changed

events one iota,” id., and the disability-based mocking she

alleges, no matter how distasteful, is not the sort of

discrimination the ADA was enacted to prevent, see Hassan v.

Slater, 41 F. Supp. 2d 343, 353 (E.D.N.Y. 1999) (denying, on

grounds of futility, plaintiff’s motion to amend complaint to add

an ADA claim based upon “humiliating, degrading and insulting”

remark directed toward him by railway ticket agent, over public

loudspeaker). 

14

court will presume that the public entity at issue is the Salem

police department, and that the disputed action is the failure of

Officers Currier and Ouellette to communicate with plaintiff in

writing prior to or during her arrest, which is generally in

keeping with the allegations set out in Count VIII of the third

amended complaint.6

Whether or not the ADA provides any rights to an arrestee

who is also a person with a disability is a question of first

impression in this circuit. Cf. Buchanan, 469 F.3d at 177 (“We

bypass the question of whether Title II of the ADA imposes duties

on a county sheriff’s department to draft policies and train

officers on the needs of the mentally ill public.”). And, there

is a “debate [among the circuits] about whether police conduct

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during an arrest is a program, service, or activity covered by

the ADA.” Bircoll v. Miami-Dade County, 480 F.3d 1072, 1084

(11th Cir. 2007). However, assuming that the ADA did impose a

duty upon Officers Currier and Ouellette to provide effective

communication during the course of plaintiff’s arrest, the

undisputed factual record demonstrates that they fulfilled any

such obligation.

In Bircoll, a deaf motorist argued that the police officer

who arrested him for DUI violated his rights under the ADA by

failing to provide an interpreter while he was administering

field sobriety tests. 480 F.3d at 1085. In rejecting that

argument, the court of appeals explained that “[t]he purpose of

the [ADA] is to place those with disabilities on an equal

footing, not to give them an unfair advantage.” Id. at 1086

(quoting Kornblau v. Dade County, 86 F.3d 193, 194 (11th Cir.

1996)). The court also noted that “the actual communication

between [Officer] Trask and [defendant] Bircoll was not so

ineffective that an oral interpreter was necessary to guarantee

that Bircoll was on equal footing with hearing individuals.” 

Bircoll, 480 F.3d at 1086). According to the court, “[w]hile the

communication may not have been perfect, Bircoll, by his own

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admission, understood that he was being asked to perform field

sobriety tests.” Id. 

Here, notwithstanding her subsequent testimony to the

contrary (Abbott Aff., at 4), plaintiff is bound by her

admissions that she both understood and knowingly disobeyed

orders to leave the Prints Plus store issued by both Denise Smith

and Officer Currier. Because plaintiff understood that she had

been ordered to leave the store, and orally refused to do so,

Officer Currier had no reason to think that he was not

communicating effectively with her. By affirmatively refusing to

comply with the order to leave (telling Officer Currier “not

without my painting”), and later asking the officers not to

arrest her, plaintiff demonstrated that she possessed sufficient

information to understand why she was being arrested. 

Consequently, the Salem police officers were under no obligation

to provide additional assistance to accommodate plaintiff’s

hearing impairment. See id. Moreover, given plaintiff’s knowing

disobedience of Officer Currier’s order, the court concludes, as

a matter of law, that probable cause existed to arrest her for

failing to comply with Officer Currier’s order to leave the

store, and that she was arrested for that reasons and not because

of her hearing impairment. Cf. Bates ex rel. Johns v.

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7 The other two federal claims in plaintiff’s third amended

complaint were presented in Count I (an ADA claim against Prints

Plus) and Count VI (an ADA claim against Simon). Count VI was

dismissed by order dated March 12, 2007. And, given the Prints

Plus bankruptcy, as reported by Judge Zobel, this court will

assume, perhaps charitably, that the claims asserted against

Prints Plus in this action resulted from a clerical error or

oversight rather than a conscious filing in contravention of the

automatic stay provisions of the bankruptcy code. Nothing in

this record suggests that relief from that stay was ever sought

or granted or that the automatic stay provisions did not in fact

apply.

17

Chesterfield County, 216 F.3d 367, 373 (4th Cir. 2000)

(explaining that suspect was arrested not because of his

disability but “because there was probable cause to believe that

he assaulted a police officer”). Accordingly, the Town is

entitled to judgment as a matter of law on plaintiff’s ADA claim.

Dismissal of Count VIII leaves this case without a federal

claim.7 Consequently, the court declines to exercise

supplemental jurisdiction over plaintiff’s state-law claims

against the Salem defendants. See McInnis-Misenor v. Me. Med.

Ctr., 319 F.3d 63, 74 (1st Cir. 2003) (citing Camelio v. Am.

Fed’n, 137 F.3d 666, 672 (1st Cir. 1998)).

Conclusion

For the reasons given, Control’s motion for summary judgment

(document no. 95) is granted; the Salem defendants’ motion for

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summary judgment (document no. 97) is granted as to the ADA claim

against the Town (Count VIII); and the court declines to exercise

supplemental jurisdiction over plaintiff’s remaining state-law

claims against the Salem defendants. Based upon the foregoing,

all that remains in this case is to hold a hearing on damages

against Denise Smith, as a result of the default entered against

her on August 1, 2005 (document no. 31). The clerk will schedule

such a hearing before the magistrate judge upon plaintiff’s

notifying the court of her intention to proceed on that default,

such notice to be filed within ten (10) days of the date of this

order. Failure to receive such notice will result in dismissal

of that claim for lack of prosecution.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

January 16, 2008

cc: William R. Sullivan, Jr., Esq.

William R. Sullivan, Sr., Esq.

Donald E. Gardner, Esq.

Catherine M. Costanzo, Esq.

John P. Coakley, Esq.

Richard J. Riley, Esq.

Debra L. Mayotte, Esq.

Vincent A. Wenners, Jr., Esq.

Meredith M. Lasna, Esq.

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