Widi, Jr. v. Federal Bureau of Prisons et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
David J. Widi, Jr.
v. Civil No. 14-cv-160-SM
Federal Bureau of Prisons et al.1
O R D E R
Plaintiff David Widi has filed a pleading, docketed as an
“Amended Complaint” (doc. no. 21), which is before this court
for preliminary review, pursuant to 28 U.S.C. § 1915A and LR
4.3(d)(1). Also before this court for a ruling is Widi’s motion
to stay this action for sixty days (doc. no. 24).
1Defendants named in the Amended Complaint (doc. no. 21) are
the Federal Bureau of Prisons; former Federal Correctional
Institution (“FCI”) Ray Brook Warden Donald Hudson; and FCI Ray
Brook Unit Manager David Salamy, Case Managers FNU Glue and Y.
Matteau, and Case Management Coordinator Gaunyea, whose first
name is unknown (“FNU”). Also named as defendants are the
following FCI Berlin employees: Warden Esker Tatum; Case
Management Coordinator Dan Sullivan; Unit Manager Wanda Mullins;
Associate Warden FNU McGurn; Capt. A. Galetta; Lt. FNU
Domitrovich; Lt. J. Hess; Lt. D. Myers; Lt. N. Hayden; Health
Services Administrator FNU McCoy; Physician’s Assistant K.
Lewis; Nurse Brad Malcolm; Nurse Christine Larin; Nurse Kathy
Bilodeau; FNU Croteau; and Corrections Officers (“COs”) R.
Smith, M. Dzubak, FNU Crimaldi, FNU Hubble, W. Knight, FNU
Teale, J. Hulume, FNU Kuznecow, R. Cone, C. Tobias, FNU Barger,
and twenty-two others, identified as “Does 1-22.”
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I. Amended and Supplemental Pleadings
Federal Rule of Civil Procedure 15(a)(1)(B) allows Widi one
opportunity to file an amended pleading as of right. Widi,
citing that authority, filed the Amended Complaint without
moving for leave to amend or supplement the complaint.
To the extent Widi asserts new claims in the Amended
Complaint (Claims 4 to 14) based on events occurring after he
filed the original complaint, the Amended Complaint is a
supplemental pleading governed by Rule 15(d), and is not simply
an amended complaint that may be filed as of right. The court
has discretion, on just terms, to grant a motion seeking leave
to add supplemental claims. See Fed. R. Civ. P. 15(d). In
light of Widi’s pro se status, the court relieves Widi of the
requirement that he file a motion for leave to supplement the
complaint, but instructs Widi that he must comply with Rule 15
if he intends to add claims to the case in the future.
Widi sought to add new claims to this case at a preliminary
stage of the action, less than twenty-one days after defendants
moved to dismiss, and before briefing on that motion had been
completed. Claim 4 in the Amended Complaint is sufficiently
related to the facts alleged in the underlying suit to warrant
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disposition in the same case. The remaining new claims (Claims
5-14), while not as closely related to the underlying claims as
Claim 4, each involve allegations of federal constitutional
violations and tortious conduct perpetrated by an overlapping
set of FCI Berlin defendants. Defendants have indicated that
they will assert defenses to those new claims that are similar
to the defenses asserted as grounds for dismissing the original
complaint. Accordingly, all of the supplemental claims are
properly joined to the underlying claims in this case, and the
supplemental pleading is the operative pleading in this case.2
II. Service
For reasons set forth in the Report and Recommendation
issued on this date, the clerk shall prepare and issue summonses
for the United States, and for each of the following FCI Berlin
employees, using the FCI Berlin address: Associate Warden
McGurn, whose first name is unknown (“FNU”); Capt. A. Galetta;
Lt. FNU Domitrovich; Lt. J. Hess; Lt. D. Myers; Lt. N. Hayden;
Health Services Administrator FNU McCoy; Physician’s Assistant
K. Lewis; Nurse Brad Malcolm; Nurse Christine Larin; Nurse Kathy
2The Report and Recommendation issued on this date
recommends dismissal of Claims 1 and 14.
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Bilodeau; FNU Croteau; and Corrections Officers R. Smith, M.
Dzubak, FNU Crimaldi, FNU Hubble, W. Knight, FNU Teale, J.
Hulume, FNU Kuznecow, R. Cone, C. Tobias, and FNU Barger.
Upon issuance of those summonses, the clerk’s office is
directed to provide each summons and a copy of the Amended
Complaint (doc. no. 21), the Report and Recommendation issued on
this date, and this Order, to the United States Marshal for the
District of New Hampshire (“U.S. Marshal”). Upon receipt of
those documents, the U.S. Marshal shall serve the United States,
pursuant to Fed. R. Civ. P. 4(i)(1), and shall also serve each
individual defendant, pursuant to Fed. R. Civ. P. 4(e).
III. Deadline for Defendants’ Answer or Other Response
Defendants shall file their answer or other response to the
Amended Complaint (doc. no. 24) by February 10, 2014.
IV. Identification of Does 1-22
Twenty-two unnamed defendants, identified by Widi as “Does
1-22” in the Amended Complaint, cannot be served at this time as
Widi has failed to identify them by name. Widi may amend the
complaint to name those parties by March 4, 2014, whereupon this
court will determine whether service upon them is proper.
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V. Motion to Stay (Doc. No. 24)
Widi has moved to stay this action for sixty days (doc. no.
24), asserting that to do so would promote judicial economy, as
he is currently exhausting claims that he intends to add to the
case. Defendants object, arguing that because a prisoner must
exhaust administrative remedies before filing a civil rights
action, the court should not stay the matter to allow for
belated exhaustion to be completed.
A month has passed since Widi filed his motion to stay
(doc. no. 24). In the interest of moving the case forward, the
court denies Widi’s motion (doc. no. 24), without prejudice to
Widi’s ability in the future to move to file an amended or
supplemental pleading, as appropriate.
Conclusion
The court directs as follows:
1. The motion for a sixty-day stay (doc. no. 24) is denied.
2. The Amended Complaint (doc. no. 21) is to be served on
the defendants named therein. Accordingly, the clerk is
directed to serve the new defendants as specified above.
3. Defendants must file their answer or other response by
February 10, 2014.
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4. Plaintiff is granted leave to amend the complaint to
name Does 1-22 by March 4, 2014.
SO ORDERED.
__________________________
Andrea K. Johnstone
United States Magistrate Judge
December 8, 2014
cc: David J. Widi, Jr.
T. David Plourde, Esq.
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