UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Christopher Palermo

v. Civil No. 08-cv-087-JD

Rockingham County Department of Corrections

Christopher Palermo

v. Civil No. 08-cv-109-JL

Coos County Department of Corrections

Christopher Palermo

v. Civil No. 08-cv-126-JL

Merrimack County Department of Corrections

Christopher Palermo

v. Civil No. 08-cv-139-PB

Merrimack County Department of Corrections

REPORT AND RECOMMENDATION

Christopher Palermo has filed a motion for a preliminary

injunction in four separate suits he has filed in this Court. 

Three of those suits, Palermo v. Rockingham County Dep’t of

Corrs., 08-cv-087-JD, Palermo v. Coos County Dep’t of Corrs., 08-

cv-109-JL, and Palermo v. Merrimack County Dep’t of Corrs., 08-

Case 1:08-cv-00109-JL Document 40 Filed 12/02/08 Page 1 of 5
1Because I can decide the matter on the face of the

pleadings, I decline to order a hearing. See Rosario-Urdoz v.

Rivera-Hernandez, 350 F.3d 219, 223 (1st Ci. 2003) (citing Aoude

v. Mobil Oil Corp., 862 F.2d 890, 894 (1st Cir. 1988)

(evidentiary hearing not an “indispensable requirement” for

deciding motion for preliminary injunction where matter can be

“heard” on papers)); see also Syntex Opthalmics, Inc. v.

Tsuetaki, 701 F.2d 677, 682 (7th Cir. 1983) (evidentiary hearing

not mandated where “evidence already in the district court’s

possession” enabled it to reach reasoned conclusions).

2

cv-126-JL, are pending. A fourth case, Palermo v. Merrimack

County Dep’t of Corrs., 08-cv-139-PB, was dismissed on October

12, 2008. This recommendation pertains, therefore, only to the

three above-numbered open cases. As to those cases, Palermo

seeks an Order directing the New Hampshire State Prison to return

Palermo to New Hampshire from the Rhode Island prison to which

they have transferred him.

Discussion

Palermo seeks to enjoin the state prison and its officials

in lawsuits against Rockingham, Coos, and Merrimack Counties and

employees of those counties.1 Neither the New Hampshire State

Prison nor any of its employees are parties to any of the pending

lawsuits. In order to bind a nonparty by injunction, the

plaintiff must prove either that the nonparty participated in a

violation, by a party, of an existing injunction, or that the

nonparty is subject to the injunction because it is legally

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identified with a party. See Fed. R. Civ. P. 65(d) (injunction

“binding only upon the parties to the action, their officers,

agents, servants, employees, and attorneys, and upon those

persons in active concert or participation with them who receive

actual notice of the order . . .”); G. & C. Merriam Co. v.

Webster Dictionary Co., 639 F.2d 29, 36 (1st Cir. 1980) (“[t]o

hold a nonparty bound by an injunction it is thus essential to

prove either that the nonparty participated in the contumacious

act of a party or that the nonparty was subject to the injunction

because legally identified with a party”). A nonparty legally

identified with a party for purposes of injunction is one who is

identified with the party “in interest, in ‘privity’ with them,

or subject to their control.” Id. (explaining that Rule 65(d) is

derived from the common law and thus should not be construed

narrowly to apply only to those persons named within the rule).

The current motion for injunctive relief alleges neither

wrongdoing on the part of any named defendant nor participation

by a nonparty in any wrongdoing of a party. Further, the State

Prison and its employees are not legally identifiable with any of

the named defendants to the pending actions. In New Hampshire,

counties and their agencies are considered local government units

Case 1:08-cv-00109-JL Document 40 Filed 12/02/08 Page 3 of 5
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subject to suit in their own right. See N.H. Rev. Stat. Ann.

507-B:1 (1997) (defining a “governmental unit” as “any political

subdivision within the state including any county, city, town . .

., but [not including] the state or any department or agency

thereof”); N.H. Rev. Stat. Ann. 23:1 (1988) (providing that “each

county is a body corporate for the purpose of suing and being

sued”). Further, the plaintiff has offered no evidence that the

named defendants are in privity with the State Prison or any of

its employees, or in any way subject to their control. For all

of these reasons, I recommend that the plaintiff’s motion for a

preliminary injunction be denied.

I note that Palermo’s allegations might constitute a new

cause of action. In order to press such an action, Palermo must

initiate a separate lawsuit against the appropriate State Prison

official or officials. Nothing in this Report and Recommendation

should be read to comment on the merits or viability of such a

suit should Palermo wish to pursue that course of action.

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

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Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: December 2, 2008

cc: Christopher Palermo, pro se

Brian J.S. Cullen, Esq.

Corey M. Belobrow, Esq.

Jonathan A. Lax, Esq.

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