Hart v. Goulette et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kenneth Hannibal Hart
v. Civil No. 16-cv-028-PB
Ryan Goulette, Page Kimbal, Eric Barbaro,
Paul Cascio, Michael Dube, and Dr. Linda
DeLorey1
REPORT AND RECOMMENDATION
New Hampshire State Prison (“NHSP”) inmate Kenneth Hart has
filed a motion to add new defendants and new claims to this
action (Doc. No. 63). The motion is before the court, pursuant
to LR 4.3(d)(1) and 28 U.S.C. §§ 1915A and 1915(e)(2).
Standard
A motion seeking to add both new defendants and new claims
to an action is, in general, evaluated using the “same standard
of liberality” that applies to motions that seek only to add new
claims. See Garcia v. Pancho Villa’s of Huntington Vill., Inc.,
268 F.R.D. 160, 165 (E.D.N.Y. 2010). In general, under Fed. R.
Civ. P. 15(a), leave to amend the claims in a case is to be
1The remaining defendants named in Hart’s pleadings (Doc.
Nos. 1, 2, 3, 9), have been dismissed. See Aug. 31, 2016 Order
(Doc. No. 18) (approving July 22, 2016 R&R (Doc. No. 11)).
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“freely given.” Leave to amend may be denied, however, if the
proposed complaint amendment would be futile. See Todisco v.
Verizon Commc’ns, Inc., 497 F.3d 95, 98 (1st Cir. 2007);
Resolution Tr. Corp. v. Gold, 30 F.3d 251, 253 (1st Cir. 1994).
To make an assessment as to the futility of a proposed
amendment, this court applies the standard for preliminary
review set forth in the July 22, 2016 Report and Recommendation
(Doc. No. 11) (“R&R”), which the court approved on August 31,
2016. See Order (Doc. No. 18).
Background
Pending in this case is a claim alleging that Hart’s Eighth
Amendment right to dental care in prison was violated by Dr.
Linda DeLorey. In the motion to add new parties and claims,
Hart asserts First Amendment retaliation and access to the
courts claims against Dr. DeLorey, dentist Dr. Edward Drainsite,
an unnamed DOC dental records keeper, and an unnamed dental
assistant. Specifically, Hart alleges that the keeper of
records and the dental assistant have either returned Hart’s
inmate request slips to him, or turned over those inmate request
slips to Dr. DeLorey and the attorney who represents her in this
case, without answering those inmate request slips, in order to
prevent Hart from both accessing the grievance process and
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gaining information about his dental care. Hart further alleges
that Dr. Drainsite retaliated against Hart for filing inmate
request slips by telling Hart’s housing unit security supervisor
to order Hart not to file inmate request slips or grievances to
the DOC Dental Department, and to threaten “consequences” if
Hart persists. Hart claims that this interference with his
ability to file and obtain answers to inmate request slips
violates his First Amendment right to petition the government
for a redress of grievances, and denies Hart access to the
courts.
Discussion
I. Access to Courts
To state a claim that a plaintiff’s right of access to the
courts has been violated, the plaintiff must allege facts
showing he was actually injured in his ability to pursue a
nonfrivolous claim in a post-conviction proceeding or other
civil rights matter that the plaintiff had a right to litigate.
See Lewis v. Casey, 518 U.S. 343, 352, 354-55 (1996). In other
words, plaintiff must allege facts that, if taken as true, would
show “‘that an actionable claim has been lost or rejected or
that presentation of the claim is currently being prevented’”
due to defendants’ actions. Guglielmo v. N.H. State Prison, 111
F.3d 122, 1997 WL 205290, at *1, 1997 U.S. App. LEXIS 8616, at
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*2-*3 (1st Cir. Apr. 25, 1997) (unpublished table decision)
(citing Lewis, 518 U.S. at 356).
Hart’s access to the courts claim hinges on his concern
that the alleged interference with his inmate request slips and
grievances could render unspecified claims about his dental care
susceptible to a “PLRA” exhaustion defense. That concern,
however, is speculative and conclusory, and does not satisfy the
requirements that the plaintiff allege facts to show past or
imminent actual injury.
Morever, the exhaustion requirement at issue, 42 U.S.C.
§ 1997e(a), simply requires an inmate to exhaust “available”
remedies, and does not require an inmate to exhaust unavailable
remedies. See Ross v. Blake, 136 S. Ct. 1850, 1858-60 (2016)
(prison administrative procedure is unavailable if “it operates
as a simple dead end — with officers unable or consistently
unwilling to provide any relief to aggrieved inmates”; if “no
ordinary prisoner can discern or navigate it”; or if “prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation”). Hart has not shown an imminent likelihood of
actual injury, given the possibility that he may be able to
overcome an exhaustion defense if it were asserted.
The facts alleged in Document No. 63 fall short of stating
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a claim that Hart has actually been injured in his ability to
file claims. Accordingly, the motion to amend (Doc. No. 63), as
to Hart’s access to the courts claim, should be denied.
II. First Amendment Retaliation
To state a claim that defendants retaliated against an
inmate for engaging in protected conduct, the inmate must allege
facts that, if taken as true, would show: (1) that he engaged in
conduct protected by the First Amendment; (2) that he suffered
non-de minimis adverse action at the hands of the prison
officials; and (3) that there was a causal link between the
exercise of his First Amendment rights and the adverse action
taken. See Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011);
Starr v. Dube, 334 F. App’x 341, 342 (1st Cir. 2009). An
adverse act taken in response to an inmate’s protected conduct
is not de minimis if it would deter an inmate of ordinary
firmness from exercising First Amendment rights. See Starr, 334
F. App’x at 342.
Hart’s allegations about alleged interference with his
inmate request slips and grievances, being ordered to stop
sending inmate request slips to the Dental Department, and being
threatened with unspecified “consequences” if he disobeys that
order, are all de minimis, in that they are not the type of
adverse acts that would deter an inmate of ordinary firmness
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from engaging in conduct protected by the First Amendment. Hart
has failed to state facts sufficient to state a retaliation
claim. Accordingly, the motion to amend (Doc. No. 63) should be
denied, to the extent it seeks to add that claim.
Conclusion
For the foregoing reasons, the district judge should deny,
in its entirety, Hart’s motion to add parties and claims (Doc.
No. 63). Any objections to this Report and Recommendation must
be filed within fourteen days of receipt of this notice. See
Fed. R. Civ. P. 72(b)(2). The fourteen day period may be
extended upon motion. Failure to file objections within the
specified time waives the right to appeal the district court’s
order. See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168
(1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
April 12, 2017
cc: Kenneth Hannibal Hart, pro se
Elizabeth Mulholland, Esq.
Seth Michael Zoracki, Esq.
Judith F. Albright, Esq.
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